The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE , GPE .

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

In DATE the applicant lent ORG CARDINAL,CARDINAL to ORG and FAC When the debtors failed to return the above sum , the applicant , on CARDINAL DATE , sued them before ORG ( Sąd Wojewódzki ) . On DATE ORG allowed his claim .

On DATE the applicant asked the Bailiff of the Drawsko Pomorskie District Court ( PERSON ) to institute enforcement proceedings . On DATE the ORG partially exempted the applicant from the enforcement fee .

On DATE the applicant asked the bailiff for the second time to institute enforcement proceedings . However , the bailiff discontinued the proceedings , as the applicant had failed to pay the required fee .

On DATE the ORG exempted the applicant from the total cost of the enforcement proceedings .

On DATE the applicant again asked the bailiff to attach ORG 's immovable property . The bailiff requested the applicant to submit certain documents . The applicant complied with this request . On DATE he asked the bailiff for the fourth time to institute enforcement proceedings . On DATE the bailiff ordered the applicant to pay the court fee . As the applicant failed to pay , the bailiff dismissed his application on DATE .

On DATE the applicant lodged a complaint with PERSON against the actions taken by the bailiff ( skarga na czynności komornika ) . He submitted that those actions had been incorrect and unlawful . On DATE , the court dismissed his complaint . It held that the exemption had only concerned his application of DATE and that the applicant had to apply again for an exemption from the court fee .

On DATE the ORG exempted the applicant from the required court fee .

On DATE the applicant asked the bailiff for the fifth time to enforce the judgment of DATE . On DATE the bailiff attached ORG 's immovable property with a view to selling it at a public auction .

On DATE the bailiff made a detailed evaluation of ORG 's property . On DATE the first public auction was held . It was unsuccessful , as the bailiff was not able to sell ORG 's property .

On DATE , at the second auction , the applicant bought the property in question . However , he failed to honour the sales transaction and on DATE ORG held that his right to acquire the property had expired .

On DATE the bailiff discontinued the enforcement proceedings on the ground that the applicant had failed to comply with the necessary formal requirements . Subsequently , he also decided that the applicant should pay the required enforcement fee . On DATE the Drawsko ORG dismissed the applicant 's appeal against these decisions .

On DATE the applicant asked the Bailiff of the Drawsko Pomorskie District Court for the sixth time to institute enforcement proceedings . The bailiff replied that the application was incomplete and refused to examine it .

On DATE the applicant filed his seventh application for enforcement . On DATE the Bailiff ordered the applicant to complete his application .

On DATE the bailiff attached the debtors ' immovable property . On CARDINAL DATE the Bailiff informed the applicant that he would discontinue the proceedings unless the applicant submitted information concerning the debtor 's assets . It appears that on DATE the bailiff discontinued the enforcement proceedings .

Under LAW seq . of LAW ( Kodeks Postępowania Cywilnego ) , a debtor may lodge a complaint against any action taken by a bailiff in enforcement proceedings ( skarga na czynności komornika ) . He may , in particular , seek a ruling as to whether the bailiff 's actions were correct , i.e. taken in accordance with a writ of execution , and lawful , i.e. whether the means of enforcement applied in a given case were provided by law . Such a complaint is examined by a district court under the provisions of Volume II of LAW relating to enforcement proceedings .


Lord Justice Schiemann;Matti Pellonpää;Nicolas Bratza

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

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

The applicant , a NORP politician , was first elected to ORG in DATE . This inner GPE covers a large part of central GPE , including ORG , GPE and Regent ’s Park as well as some less affluent areas to the north and north - west . During the DATE ’s , she was leader of the ORG as well as of the majority party .

As a result of the local government elections in DATE , the overall Conservative party majority was reduced from CARDINAL to CARDINAL . The applicant was determined that ORG would have a greater majority at the DATE elections . With this end in view , she re - organised the party ’s administrative and decision making structure and chaired ORG which was to develop and promote policy . In DATE , the applicant and others in the majority identified key wards , namely CARDINAL districts which were marginal . Their intention was to develop council policies which would target marginal wards , including such housing policies as could affect the make up of the electorate of those wards . References were made inter alia to “ an immediate need to socially engineer the population in marginal wards ” and to an aim “ to preserve local communities – but boot out certain categories ” .

The ORG held a stock of CARDINAL dwellings used for the provision of social housing . The plan which was developed involved selling ORG in strategically important areas at reduced prices to approved applicants who , it was hoped , would be more likely to vote Conservative – “ designated sales ” . Properties to be sold in this way were designated , then kept empty as they became available until suitable purchasers were approved .

On DATE , at a meeting of ORG , it was proposed to designate all ORG properties in the CARDINAL marginal wards . A memorandum on CARDINAL DATE from ORG advised that this would render it impossible to meet statutory obligations to the homeless and they should seek legal advice . On DATE , ORG advised the applicant that “ it was fundamental that the arguments in favour of selling be soundly based and properly argued . Anything which smacks of political machinations will be viewed with great suspicion by the courts . ” He also stated that “ the possibility of surcharge [ legal requirement to pay any financial loss to the City ] exists but it will be necessary for those challenging to show wilful misconduct . This re - emphasises the need for a good argument to be constructed in favour of sale ” .

DATE the Chairmen ’s group decided to adopt a target of CARDINAL sales per annum in the marginal wards . On DATE , the report commissioned by ORG ( economic consultants ) however failed to provide support or professional justification for the identification of the CARDINAL key wards or for any increase in designated sales . A further paper on designated sales produced by the divisional director of housing adverted to a number of difficulties about the sales target and gave the view that it was imperative to obtain counsel ’s advice .

On DATE , a number of ORG officers met with ORG . There was no contemporaneous record of his advice . A report was made to the applicant and the Chairmen ’s group TIME . The independent counsel was informed that the majority group wished to target sales in marginal wards for electoral advantage . He advised that they could not lawfully sell CARDINAL properties per annum in the marginal wards alone . He also advised that properties had to be designated for proper reasons , across the whole of the City and not in particular wards and that , in identifying properties to be designated , the same criteria had to be applied across the whole City and , ultimately , choice made without reference to anything other than those proper criteria . The Chairmen ’s group agreed to target sales city - wide in order to produce the number of designated sales in marginal wards .

At a meeting on CARDINAL - CARDINAL DATE , the DATE ’s group endorsed the target of CARDINAL sales across the ORG which was intended to produce the desired number of sales . During DATE , an analysis was conducted in order to identify the properties that could be designated . The legal adviser to ORG repeated that it was vital that the ORG choose estates on the basis of housing and planning issues and that it would be necessary to be able to show that the list was neither arbitrary nor drawn up with reference to “ improper factors ” .

A joint report on ORG in the names of various ORG officials was circulated on DATE , outlining CARDINAL options on designated sales but recommending none . The third option was to designate sufficient properties to produce CARDINAL sales per annum . CARDINAL properties had been identified in the report as eligible for designation PERCENT were in the CARDINAL marginal wards . Evidence was given later that the joint report had been shown to counsel who had considered that it was “ judge proof ” . The list of properties to be designated was not recommended by officers – it was presented by the Chairman of ORG PERCENT of all eligible dwellings in the CARDINAL key wards were to be designated while PERCENT of all eligible properties in other wards were designated .

At the meeting of ORG on DATE , the Chairman of ORG presented Option CARDINAL as the majority party ’s preferred option . By CARDINAL votes to CARDINAL , Option CARDINAL was adopted .

Following this decision , on instructions from the Chairmen ’s group , monitoring reports were issued concerning the progress to achieving “ sales targets ” in the CARDINAL key wards . Labour members of the Opposition were questioning the sales policy with increasing vigour however , repeatedly pressing for information on the selection of wards .

DATE and DATE , some CARDINAL dwellings were disposed of with vacant possession , sold to an approved list of purchasers , all first - time buyers , at discounts varying from PERCENT of the market value according to the circumstances of the purchaser .

In DATE , complaints were made by local government electors to Mr PERSON , the ORG ’s Auditor about the legality of the designated sales policy , inviting the ORG to take action under sections DATE and CARDINAL of LAW DATE . CARDINAL persons were named or referred to in the objection , including the applicant , her deputy PERSON , the Director of ORG and others on that ORG .

In DATE , the ORG requested a formal response to the objections from ORG . The ORG produced its response on DATE .

On DATE , the ORG asked the ORG if it wished to supplement its reply in light of further objections received during DATE . He also asked the Managing Director of the ORG to provide him with a comprehensive set of reports to the ORG , its committees etc . relating to key wards strategy and designated sales and relevant correspondence on those subjects .

On DATE , the Managing Director informed the Auditor that ORG did not have a key wards strategy and that there were no Council documents under that heading .

On DATE , the ORG ’s supplementary response was sent to the Auditor .

By letter of CARDINAL DATE , the Managing Director informed the ORG that the files containing papers relevant to the objections were available for inspection at FAC . The documentation assembled was however far from complete .

From DATE , the Auditor carried out a review of the extensive documentation at FAC and obtained preliminary legal advice . He requested further documentation from the ORG .

In DATE , the Auditor commenced his interviews of persons involved . He was to carry out a total of CARDINAL interviews , involving CARDINAL individuals .

From DATE , the LOC made visits to ORG offices to inspect further documents and made further requests for documents .

He completed his initial round of interviews in DATE . He interviewed the applicant on DATE . Having regard to his wish to arrange interviews in a particular order , the progress of interviews was hampered by a delay on the part of some prospective interviewees in responding to requests for interviews and by the apparent reluctance of some interviewees to attend for interview . The Auditor exercised his powers under LAW of LAW to require CARDINAL individuals , including the applicant , to attend before him .

The ORG reviewed the evidence and took further legal advice . In DATE , he began a second round of interviews , which lasted from DATE . He interviewed the applicant for the last time on DATE ( a total of CARDINAL occasions at which the applicant was represented by counsel ) . Having regard to information already received and in consequence of further interviews , the LOC decided to visit a number of ORG offices and to search for documents . He inspected a large number of files , locating files in a storeroom and reviewing the entire underground filing area . New documentation , previously undisclosed , was obtained .

In DATE , the Auditor became aware for the first time of handwritten notes made by ORG during meetings in DATE to DATE .

The Auditor conducted a further CARDINAL interviews in DATE . The applicant and others made written submissions to the LOC during DATE .

On DATE , the Auditor issued “ Notices to Show Cause ” to CARDINAL named individuals , including the applicant . These stated that he had to consider whether to certify the sum of QUANTITY ( GBP ) or any other sum as due from them as being a loss or deficiency incurred by their wilful misconduct and were accompanied by a Note of his provisional findings and views ( CARDINAL pages ) a history of events ( CARDINAL pages ) and CARDINAL other appendices ( a total of over CARDINAL pages ) and a copy of the public statement issued by the Auditor DATE to the press . In his Note , the Auditor concluded in respect of the applicant that he was provisionally minded to find her guilty of wilful misconduct . The purpose of the issuing of provisional views was to inform those at risk , the ORG and the objectors of those views so that they could address such representations to the LOC as they wished before he reached a final conclusion . He invited those concerned to indicate whether they wished an oral hearing .

On DATE , the Auditor held a press conference to read out his public statement , sitting at a table on which there was a bundle of material documents . This press conference and the ensuing publicity formed the basis of later complaints that there was an appearance of bias tainting the whole inquiry .

CARDINAL of the persons named in the provisional findings , the ORG Vice - Chairman of ORG , Councillor PERSON , committed suicide shortly afterwards .

Solicitors for the applicant applied to ORG on DATE to replace PERSON with a new auditor . ORG refused to do so .

As CARDINAL parties and the ORG requested an oral hearing ( not the applicant ) , the Auditor fixed proceedings to begin on DATE . In a preliminary meeting in DATE , the applicant applied for the Auditor to disqualify himself . Oral submissions were made on the point on CARDINAL and CARDINAL DATE . On DATE , the Auditor gave written reasons for not disqualifying himself .

An audit hearing took place between DATE and DATE , involving DATE of hearings . The applicant was represented at the hearing by leading counsel who made extensive submissions on her behalf . She did not give evidence , having no confidence in the impartiality of the LOC . CARDINAL accountants were called on her behalf .

The ORG received further representations and evidence after the hearing . On DATE , the applicant made submissions in light of a recent ORG judgment on duties of local authorities to the homeless .

On DATE , the Auditor circulated a revised provisional calculation of net loss and invited representations by CARDINAL DATE . He received representations from the objectors . The parties were informed that notification of arrangements for the issuing of his decision would be given on DATE . On DATE , the applicant requested ORG to investigate his conduct . The Auditor delayed his decision pending this complaint . On DATE , ORG refused the applicant ’s request . She did not seek judicial review of this decision .

On DATE , the Auditor notified his decision and issued certificates of surcharge under LAW in respect of CARDINAL individuals , the applicant , Mr DATE ( deputy leader of ORG ) , Councillor PERSON ( Chairman of ORG ) , PERSON ( Managing Director from DATE ) , PERSON ( Director of Housing ) and Mr PERSON ( divisional Director of Housing ) . Each was found jointly and severally liable in the sum of GBP CARDINAL being the amount of a loss incurred or deficiency caused by their wilful misconduct . The decision and statement of reasons ran to CARDINAL pages .

The CARDINAL respondents appealed to ORG under section CARDINAL ) of LAW . The appeal of Mr GPE was later allowed on grounds of his ill - health .

DATE and DATE , ORG held a preliminary hearing on procedure . It directed inter alia :

“ The nature of the present hearing will be to go beyond a mere judicial review on ORG grounds and look at the merits ( ... ) . The ORG ’s report and evidence will stand before us , but is open to challenge ( ... ) ... it is for the appellants to open the appeal and to establish prima facie that there was something amiss with the ORG ’s report or certificate ...

The next question is on whom ultimately the burden lies at the appeal . As we have said , initially it is for the appellants to show that something was wrong with the ORG ’s report or certificate . If this hurdle is surmounted by the particular appellant , it is , in our view , for the respondents to prove , on the material before this ORG , wilful misconduct by that appellant causing identified loss . ... It should also be borne in mind that this ORG will have to be satisfied to the high degree of proof on the balance of probability , which is necessary for a finding of wilful misconduct . We rule that the ultimate burden of proof on appeal will be on the respondent .

... we shall receive such evidence as we have indicated on affidavit , but we shall direct that the deponents be available to be cross - examined ... ”

The appeals were heard DATE and DATE .

On DATE , ORG delivered its judgment ( PERSON v. PERSON , DATE ORG , p. CARDINAL ) . In its judgment , it commented as follows on the complexity of the proceedings :

“ On any view the auditor ’s investigation was vast . It cost MONEY . Whether ORG contemplated so gigantic an investigation by an auditor into an objection to local authority accounts we very much doubt . In our judgment , in any future investigation of this kind it will be essential for the auditor to exercise a sense of proportion and to balance , on the one hand , the need for adequate scrutiny of the accounts and the objections to them and , on the other , the need to avoid prolonged and inordinately expensive inquiry ...

The auditor in this case conducted CARDINAL interviews with CARDINAL people , including the appellants , each of whom he interviewed many times . The history of events is set out in detail in CARDINAL pages ... His investigations started at the behest of electors who were members of the minority party and who on DATE gave him written notice , under section DATE ) of LAW , of objection to the lawfulness of the council ’s accounts . He gave his final decision on DATE . Including appendices , it extends to CARDINAL pages . He examined CARDINAL pages of documents . CARDINAL of pages of transcript of his interviews , the proceedings before him and the submissions made to him were generated . We rule , prior to the hearing of the appeal that the auditor ’s interviews of persons other that the appellants should be treated as evidence before us .

Before this court , with the assistance of all counsel to whom we are indebted , it has been possible , with the aid of comprehensive and detailed written submissions , amplified in oral argument , on behalf of all parties , to focus on the issues raised in this appeal with recourse to comparatively few of these voluminous papers . It has also been a significant feature of this appeal that , although none of the appellants chose to give evidence before the auditor , each of them has sworn a substantial affidavit for the purpose of the appeal , on which each was orally cross - examined . We have also received the written reports of expert valuers and accountants in relation to what , if any , loss the council suffered and these experts have also been orally cross - examined ...

It follows that we have conducted this appeal by way of re - hearing in accordance with ORG , ORG , r.CARDINAL . In doing so we have kept in the forefront of our minds the impairment of recollection which is the inevitable consequence of the passage of DATE between the occurrence of the material events and the evidence before us . In such circumstances , the contemporaneous documents are of obvious importance . We have approached the matter by considering , in relation to each appellant , whether the auditor appears to have gone wrong in any respect and whether , having regard to the high standard of proof appropriate to the seriousness of the allegation ... wilful misconduct causing loss has been shown ... ”

Concerning the appellants’ assertions about alleged breaches of LAW by the procedures before the Auditor , it stated :

“ In our judgment , LANGUAGE law treats that matter as one of civil not criminal liability . The ‘ penalty’ as it is described by ORG of ORG is in fact calculated by reference to the loss sustained by the council taxpayer by reason of the wilful misconduct alleged . It follows that the nature of the proceedings is compensatory and based upon the principle that those who misbehave in public office should be required to make good to the taxpayer any resulting loss . That is no different from the principle that a trustee should make good to the trust fund any loss which may result from his misconduct . If the penalty imposed were greater than the loss incurred , then different considerations might apply . But the only potential additional consequence is disqualification from office ... ”

It took the view that the jurisdiction of the domestic courts gave the appellants the required control by a judicial body that had full jurisdiction and provided the guarantees of LAW and that even if what happened before the Auditor was capable of amounting to a breach of the Convention the proceedings before the courts remedied any possible unfairness . It went on to find no problems arising from the role imposed on the LOC by legislation and that no right to cross - examine the LOC arose outside criminal proceedings . It noted that the delay had been extreme but that having regard to the proceedings as the whole which involved an expensive and time consuming investigation and to its finding that no prejudice or resulting injustice had been shown as suffered by the appellants , there was no breach of any reasonable time requirement either . It stated as regarded the LOC ’s press conference :

“ We are prepared to accept that , in the light of the great public interest in this matter and the lengthy period taken by the initial investigation culminating in the provisional findings , it was appropriate for the public to be given some explanation for the time spent and some indication of the auditor ’s provisional views . But , in our judgment , the press conference which took place was ill - conceived and unfortunately executed . It would have been sufficient for a press statement to have been issued , preferably by the auditor ’s solicitor , saying that the complexity of the investigation accounted for its length and that , at that stage , the auditor was provisionally minded to make findings of wilful misconduct causing loss against the individuals named but that , before he reached any final decision , the individuals would have the opportunity to give evidence and make submissions to him .

Instead , a televised announcement was arranged at which the auditor himself appeared and , although he said that his views were provisional , he expressed them in florid language and supported them by reference to the thoroughness of the investigation which he claimed to have carried out . There was a further feature of the event which should have had no place in the middle of a quasi - judicial inquiry . A stack of ringbinders on the desk at which the auditor sat bearing the name of his firm for the benefit of the cameras was , ostensibly , under the protection of a security guard : unless it was being implied that the persons under investigation might wish to steal the documents , it is not clear what was the purpose of this posturing .

We express the hope that , in any future , the statutory investigation of this kind , no auditor will stage any similar event , which may undermine the perception , whatever may be the reality , of the auditor ’s open - mindedness . In the light of the material before us , including , in particular , the auditor ’s reasons for declining to recuse himself , we accept that despite such inferences to the contrary as might have been drawn from the press conference , the auditor did have an open mind and was justified in continuing with the subsequent hearings . ... The error of judgment which we find he made , in holding the press conference as he did , did not , in our view , demonstrate bias on his part . He was at pains to stress the provisional nature of his findings and it is pertinent that in his final decision he made no finding of wilful misconduct against CARDINAL persons in relation to whom he had , provisionally , been minded so to find . In any event , as with the investigation , any possible unfairness to the appellants has been cured by the hearing before us ... ”

On the substance of the appeal , ORG found that the LOC ’s decision lacked a “ sufficient analysis of the possible impact on the state of mind of the appellants , which is crucial in relation to wilful misconduct , of the legal advice received , or reported to have been received , on CARDINAL DATE ” . It concluded itself that the decision of CARDINAL DATE was substantially influenced by a wish to alter the composition of the electorate by increasing the Conservative vote in marginal wards by the sale of council properties and was therefore unlawful . It found untrue the applicant and PERSON ’s claim that following counsel ’s advice on CARDINAL DATE that the designation of sales for electoral purposes was abandoned :

“ ... in our judgment [ the applicant ] and PERSON lied to us , as they had done to the auditor , because they had the ulterior purpose of altering the electorate which they knew rendered targeting sales in marginal wards unlawful ... Because [ the applicant ] and PERSON knew the targeting policy was unlawful they were content , without further enquiry ... to adopt the suggestion ... that it be dressed up in city - wide clothes : neither claims that this was a proper course . Their purpose throughout was to achieve unlawful electoral advantage . Knowledge of the unlawfulness and such deliberate dressing - up both inevitably point to , and we find , wilful misconduct on behalf of each of them . ”

The appeals of PERSON , PERSON and PERSON were allowed , largely , on the basis that it was not established to the necessary standard of proof that what they said or did during the relevant time was , to their knowledge , unlawful or improper . The appeals of the applicant and PERSON DATE were dismissed and they were found to have caused loss by wilful misconduct in the reduced sum of GBP CARDINAL . Permission to appeal was refused . They renewed their applications to appeal on CARDINAL and CARDINAL DATE respectively .

On DATE and DATE respectively , Mr DATE and the applicant were granted leave to appeal to ORG .

The appeals were heard before ORG DATE . In its judgment of DATE , by a majority , it allowed the appeals . The majority held that , since the applicant had acted on what she believed to be correct legal advice , it was inconsistent of ORG to find that she and PERSON had committed wilful misconduct while finding that the other appellants who believed that Option CARDINAL was lawful had not shown wilful misconduct . The majority found the decision of ORG to have been lawful and any improper purpose attributable to the applicant did not render the committee ’s decision unlawful and was not causative of any loss . It quashed the ORG ’s certificate .

On the allegations of bias , Lord Justice PERSON noted that the applicant ’s counsel accepted that he had not shown that the LOC was actually biased and found that the expression of provisional views was part of the procedure sanctioned by ORG and that there was nothing to lead him to suppose that the ORG was unfairly biased against the appellants . As regarded delay , he considered that a fair hearing was still possible notwithstanding the lapse of time which had had no effect on the reliability of the conclusions reached or the appellants’ ability to present evidence . He also noted that as regarded any implied damage , psychological or otherwise , purported to flow from the delay no claim for damages had been put forward . He was satisfied that the appellants had not been required to prove a lack of wilful misconduct but that the LOC and ORG were persuaded that the appellants had committed wilful misconduct . In respect of the argument that the appellants were unable to cross - examine the ORG before ORG , he considered that though a tribunal ’s judgment may be reversed on grounds of actual bias , there was no requirement that the tribunal submit itself to cross - examination in order to see whether an admission of actual bias could be procured . Nor was he impressed by the argument that the appellants were unfairly prevented from cross - examining the LOC as regarded quantum .

ORG granted the Auditor permission to appeal to ORG . His appeal was heard DATE . In the ORG of Lords’ judgment of DATE , the ORG appeal was allowed and the orders of ORG and the certificate of ORG CARDINAL restored .

ORG concurred generally with the findings of ORG and the approach of the dissenting judge in ORG .

In his judgment , Lord PERSON found that the applicant and Mr DATE accepted that they knew that they could not use the council ’s powers for electoral advantage and that in adopting and implementing the designated sales policy both acted in a way which they knew to be unlawful . While the applicant ’s counsel had argued that the applicant had acted in accordance with what they believed to be legal advice given to the council and were accordingly not guilty of wilful misconduct , he relied on the clear findings of the LOC and ORG , who had heard the evidence , that the applicant and PERSON had not pursued the designated sales policy on legal advice . He noted that :

“ First , it is simply not true that [ Mr S , the PERSON ’s counsel who gave the advice ] was given access to all relevant information or that [ the applicant ] laid bare her hopes to her legal advisers . Mr S. received no written instructions and gave no written advice . There were CARDINAL questions which the council should have put to him . The first was whether it was lawful to promote a policy of designating council properties for sale in marginal wards for the purpose of securing an electoral advantage for the majority party at the forthcoming council elections . That question was put to Mr S. and he answered it in the negative as he was bound to do . The second , follow - up question should have been whether , if that policy would be unlawful , the policy would become lawful , if , with the same objective , and in order to conceal the targeting of sales in marginal wards , the designated sales policy were extended across GPE . That question was never put . CARDINAL , including [ the applicant ] and PERSON DATE , could have had any doubt at all what the answer would have been if it had . PERSON was never told of the course on which the council proposed to embark or had embarked . The second weakness is found in the history of pretence , obfuscation and prevarication which surrounded the policy from DATE . If the policy was genuinely believed to be lawful , albeit controversial , there was no need for such intensive camouflage . ”

As regarded the alleged inconsistency in allowing the appeal of ORG , GPE and PERSON while rejecting the appeal of the applicant and Mr DATE , Lord PERSON concurred with the unease felt by Lord Justice PERSON in ORG :

“ It is understandable that ORG was reluctant to be excessively critical of officers , who were subject to considerable pressure from elected members ... PERSON conduct does not earn that measure of indulgence . But ORG had the advantage of hearing these CARDINAL witnesses . It was rightly alert to the high standard required before a finding of this gravity could be sustained . It may very well be that PERSON , GPE and PERSON were fortunate to be exonerated , to the limited extent that they were exonerated . But the findings made against [ the applicant ] and Mr DATE were , in truth , very strong . They were the leader and deputy leader of the council , and were respectively the prime architect and midwife of this policy . I am satisfied that no injustice was done to either of them by upholding the findings of the auditor and ORG . ”

Concerning the grounds of appeal raised under the Convention , Lord Hope rejected the argument that the proceedings fell under LAW in the criminal aspect :

“ I consider that the nature of the proceedings under LAW is compensatory and regulatory , not punitive . Section CARDINAL(CARDINAL ) provides that the amount certifiable by the auditor , where it appears to him that a loss has been incurred or deficiency caused by wilful misconduct , is the amount of the loss or deficiency and that both he and the body in question may recover that amount for the benefit of that body . The object of the procedure is to compensate the body concerned , and the measure of the compensation is the amount of the loss suffered . In the present case the amount certified was very large , but the nature of the proceedings does not alter depending on the amount certified . No fine is involved , nor does the section provide for a penalty by way of imprisonment . Section CARDINAL(CARDINAL ) provides for the respondents’ disqualification from being members of a local authority . But this outcome is similar to where a trustee is removed after being found to have been in serious breach of trust , or a person is disqualified from acting as a director of a company . In my opinion measures of the kind provided for by LAW , which apply to persons having a special status or responsibility and are compensatory and regulatory rather than penal in character , lie outside the criminal sphere for the purposes of LAW . ”

He went on to find that the applicant was nonetheless entitled to the protection offered by LAW concerning civil rights . To the extent that the Auditor was required by statute to act as investigator , prosecutor and judge , this problem was solved in his view by the provision of a complete rehearing by ORG which could exercise afresh all the powers of decision given to the LOC . He agreed with ORG that the ORG had made an error of judgment in making a statement at a public press conference . However while this created the risk of unfair reporting there was nothing in the words the LOC used to indicate that there was a real possibility that he was biased . He noted the LOC was at pains to point out that his findings were provisional and there was no reason to doubt this as his subsequent conduct demonstrated . Looking at the matter objectively , he did not find that it had been demonstrated that there was a real possibility of bias .

As regards the complaint of unreasonable delay in the proceedings , Lord Hope ( with whose judgment on the issue all the members of ORG agreed ) observed that the period of which complaint was made could be divided into CARDINAL distinct periods : ( a ) that from the receipt of the original objection on DATE to the issuing by the Auditor of his provisional views on DATE ; ( b ) that from CARDINAL DATE to the end of the audit hearing on DATE ; ( c ) that from DATE to the issuing by the Auditor of his decision and the certificates of surcharge on CARDINAL DATE ; and ( d ) that from DATE to the decision of ORG which was given on DATE . Lord PERSON noted that no complaint had been made about any delay after that date .

As to the proceedings before ORG , Lord Hope held that there was no basis whatever for the suggestion that there had been unreasonable delay at that stage . The Auditor had issued his certificate in DATE . It was not until DATE that the respondents filed their evidence on the main issues . The accounting evidence was not filed until DATE . A procedural hearing was held shortly afterwards in DATE . The case proceeded to a hearing in ORG in DATE , which lasted for DATE and judgment was given on DATE . Having regard to the complexity of the issues and the volume of evidence that had to be prepared and presented , the proceedings in ORG had been concluded within a reasonable time .

As to the proceedings before the LOC , Lord PERSON stated :

“ In my opinion the most striking feature which emerges from all the facts relating to the conduct of the investigation by the auditor is that , far from causing delay by inaction , he was constantly in action . He was seeking out information wherever it could be found , often with considerable difficulty . He was interviewing and re - interviewing many witnesses , recovering and perusing CARDINAL of documents , calculating amounts of loss and expenditure and then gathering all this information together into a decision which eventually extended to CARDINAL pages ... It has been suggested that his investigation was over - elaborate . There are comments to that effect in ORG judgment ... But the auditor had to form his own judgment on this matter . He had to take account of the importance of the exercise to all parties , including those who were at risk of being surcharged , and he was entitled to have regard to its obvious political sensitivity . I would attach particular significance to these factors and to the fact that it has not been suggested at any stage that the auditor caused delay at any stage by inactivity .

Applying the test described in PERSON v. GPE ... which directs attention to the complexity of the case , the applicant ’s conduct and the manner in which the matter was dealt with by the authorities , and leaving aside the question whether the [ applicant and PERSON ] can show that they were prejudiced , I would hold that the proceedings did not exceed the reasonable time requirement which LAW lays down . ... ”

On DATE , the ORG made a formal demand for the applicant to pay the certified sum by DATE .

On DATE , the ORG issued proceedings in ORG for the certified sum , damages and the audit fees . On DATE , the ORG obtained an ex parte order freezing the applicant ’s assets up to a value of ORG CARDINAL . She was required to file an affidavit listing her assets by DATE . The freezing order was renewed on DATE , including limited exceptions for living expenses and a reasonable sum ( not exceeding GBP CARDINAL ) for legal representation .

The applicant filed a defence , denying liability to pay additional damages or audit fees .

On DATE , the ORG issued an application for summary judgment against the applicant . The applicant opposed the application at a hearing on CARDINAL , DATE and DATE . On DATE , ORG issued summary judgment for payment of the certified sum and damages for breach of trust ( a total sum not exceeding GBP CARDINAL ) . The applicant ’s application for a stay pending proceedings in GPE was refused .

The applicant was granted leave to appeal . On DATE , the applicant was granted an extension of time in which to lodge her appeal , subject to her compliance with orders requiring her to inform ORG source of her current funding , to discharge outstanding sums due to ORG in respect of their costs and to provide security for costs of the appeal in the sum of GBP CARDINAL by DATE . To date , the orders have not been complied with and her appeal is liable to be dismissed .

Section CARDINAL of ORG DATE provides as relevant :

“ ( CARDINAL ) Where it appears to the auditor carrying out the audit of any accounts under this Part of this Act ...

( b ) that a loss has been incurred or deficiency caused by the wilful misconduct of any person , he shall certify that ... the amount of the loss or the deficiency is due from that person and ... both he and the body in question ... may recover that ... amount for the benefit of that body ; and if the auditor certifies under this section that any ... amount is due from CARDINAL or more persons , they shall be jointly and severally liable for that sum or amount .

( CARDINAL ) NORP person who ...

( b ) is aggrieved by a decision of the auditor to certify under this section that a sum or amount is due from him , may ... require the auditor to state in writing the reasons for his decision

( CARDINAL ) Any such person who is aggrieved by such a decision may appeal against the decision to the court and –

( a ) in the case of a decision to certify that any amount is due from any person , the court may confirm , vary or quash the decision and give any certificate which the auditor could have given ... ”

In ORG in the present case , Lord Hope examined the jurisdiction of the courts on an appeal under section CARDINAL ) of LAW . It was his view that any problem which may be seen to result from the fact that , where accusations of wilful misconduct were involved , the LOC was required to act not only as an investigator but also as prosecutor and judge was resolved by the appeal provisions in section PERSON ) :

“ The court can exercise afresh all the powers of decision given to the auditor ... The powers which ORG has been given by section CARDINAL ) fully satisfy [ the requirements of LAW ] . Not only does it have the power to quash the decision taken by the auditor . It has the power to rehear the case , and to take a fresh decision itself in the exercise of the powers given to the auditor ... In the case of the procedure governed by section PERSON ) however a rehearing on the merits can be conducted , and this is what was done in this case . ”

In DATE , Lord PERSON ’s ORG published its report “ Standards of Conduct in Local Government in GPE , GPE and GPE ” . It recommended that the surcharge should be abolished . It took the view that it was unsatisfactory to have a procedure in which the Auditor formulated and prosecuted a case against individual councillors , judged guilt or innocence and determined the penalty . It considered that the concept of surcharge was outdated , that in practice it was in the nature of a penalty and that the procedure should be replaced by the direct involvement of the courts . It also noted the anomaly , regarded as inequitable by some , that the regime of surcharge applied only to local government and not to others in public service , finding it illogical that only those in local government should be subject to a regime for punishing misconduct which was serious but which did not involve corruption .

While section CARDINAL of LAW was re - enacted by CARDINAL of LAW DATE , this was amended in turn by section CARDINAL of LAW CARDINAL , which removed the power of surcharge .


The applicant was born in DATE and lives in GPE .

On DATE the applicant was placed in police custody on suspicion of drug trafficking . On DATE ORG ordered that the applicant be detained on remand .

The court based its detention order on a reasonable suspicion that the applicant had committed the offence of drug trafficking and the severity of the likely penalty , which gave rise to a fear that the applicant would obstruct the proceedings . Moreover , the court took into account that other suspects had remained at large , which would pose a risk of collusion if the applicant were released .

Subsequent decisions on the extension of the applicant 's pre - trial detention were taken on DATE , CARDINAL DATE , DATE , DATE , CARDINAL DATE and DATE .

The courts referred to the complexity of the case , the need to conduct further investigations , the probability of collusion between the applicant and other suspects and exertion of unlawful pressure on witnesses by the applicant . They stressed that the fact that the applicant had not pleaded guilty posed an additional risk of his influencing other persons involved in the proceedings . In their opinion no other preventive measure could ensure the proper conduct of the proceedings .

The applicant appealed on several occasions against the decisions extending his detention and requested release from detention or the imposition of a more lenient preventive measure , drawing the court 's attention to his poor state of health .

On DATE a telephone company was requested to provide an itemised bill of the applicant 's telephone calls to other suspects .

On DATE and CARDINAL DATE confrontations of witnesses and suspects took place .

On DATE the prosecutor ordered an expert opinion of a heart specialist with a view to establishing the applicant 's state of health . No grounds for the applicant 's release from detention were found .

On DATE an expert opinion was ordered with a view to determining whether the substance found in the course of police operations had been an illegal drug . The opinion was submitted on CARDINAL DATE .

On DATE and DATE expert opinions concerning a weapon which had been found by the police were submitted .

On DATE another expert opinion of a heart specialist was ordered . Again , the applicant was found to be fit for detention .

On DATE a bill of indictment against the applicant and CARDINAL other co - accused was lodged with the court . The applicant did not plead guilty .

On DATE the court decided to transfer the case file to ORG so that shortcomings in the investigation could be corrected .

On DATE CARDINAL expert opinions were ordered with a view to establishing the applicant 's mental health .

On DATE expert opinions on cardiology and diabetology were ordered . The experts did not find any grounds for the applicant 's release .

Hearings were held on the following dates : CARDINAL DATE , DATE , DATE , CARDINAL DATE , DATE , DATE , CARDINAL DATE , DATE and DATE . Over CARDINAL witnesses were examined by the court .

On DATE the court ordered that witnesses who had previously failed to appear at hearings be escorted to the court .

On DATE an expert opinion on neurology was submitted . No grounds for the applicant 's release were found , although it was stated in this opinion that his prolonged detention might pose some future risk to his health and he was referred to a prison hospital for observation . The date of his admission to hospital was fixed for DATE .

On DATE the ORG gave a judgment . The applicant was found guilty of drug trafficking and sentenced to DATE imprisonment . The court ordered that the applicant remain in custody until the prison sentence could be enforced .

On DATE the applicant appealed against the decision of CARDINAL September CARDINAL on the extension of his detention .

On DATE ORG allowed the applicant 's appeal of DATE and on DATE he was released from detention .

On DATE CARDINAL appeals against the judgment of DATE were lodged by the applicant 's lawyers .

On DATE the ORG quashed the judgment and remitted the case . The proceedings are pending .

The relevant domestic law concerning the imposition of detention on remand ( aresztowanie tymczasowe ) , the grounds for its prolongation , release from detention and rules governing other so - called “ preventive measures ” ( środki zapobiegawcze ) is set out in the ORG 's judgments in the cases of ORG v. GPE ( no . CARDINAL , § § DATE , DATE ) and PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE ) .

The relevant domestic provisions and practice concerning the ORG 's liability for a tort committed by its official , in connection with a right to a trial within a reasonable time , have already been cited in previous cases against GPE ( see , for example , PERSON v. GPE , no . CARDINAL , DATE , and ORG v. GPE , no . CARDINAL/CARDINAL , DATE ) .


Violation of Article 6 - Right to a fair trial

Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

The applicant was born in DATE and lives in PERSON .

A. Applicant 's action of DATE

On DATE the applicant claimed a sum of money from an association and its CARDINAL individual members before ORG .

In DATE ORG held a hearing at which neither the applicant nor his lawyer appeared . The applicant also failed to appear at the hearing of DATE .

Another hearing was scheduled for CARDINAL DATE but did not take place due to the absence of the judge . A further hearing was scheduled for DATE but could not take place because it turned out that the judge who had been charged DATE with replacing the judge dealing with the case was the wife of the lawyer of the defendants .

On DATE ORG discontinued the proceedings in respect of CARDINAL of the defendants .

NORP In letters of DATE and DATE the President of ORG acknowledged that there had been unjustified delays in the proceedings .

On DATE and DATE ORG held further hearings . The former took place before a substitute judge who had been charged with replacing the judge initially appointed on health grounds DATE . Consequently , he had no in - depth knowledge of the case file and he could not proceed with the case . The latter hearing took place before a further judge who , again , was not familiar with the details for the case . It was adjourned sine die with a view to obtaining expert evidence .

In the meantime , on DATE , ORG dismissed as unfounded the applicant 's challenge to all judges of ORG .

NORP On DATE ORG appointed an expert and ordered that the applicant pay an advance on the expert 's fees . The applicant appealed against the latter ruling .

On DATE ORG discharged the expert and appointed another one . On DATE it corrected clerical errors in that decision .

On DATE ORG urged the expert to submit his opinion . The expert first requested an extension of the time - limit for the elaboration of his opinion and , subsequently , an exemption from his obligation to elaborate the opinion .

On DATE ORG did not exempt the expert from his obligation and urged the submission of the opinion by DATE . The expert requested ORG to appoint a different expert due to his heavy workload . On DATE the ORG prolonged the time - limit for elaboration of the expert opinion and warned the expert that a fine would be imposed on him in the absence of a reply . On DATE the expert filed his opinion .

DATE and DATE ORG held QUANTITY hearings . They were adjourned with a view to obtaining further evidence and summoning witnesses and the defendants .

On DATE ORG delivered a judgment dismissing the action .

On DATE ORG , upon the applicant 's appeal , partly confirmed and partly revised the first - instance judgment .

On DATE ORG , upon the applicant 's appeal on points of law , quashed the appellate court judgment .

On DATE ORG approved the friendly settlement reached between the parties . The decision became final on DATE .

On DATE the applicant lodged a complaint with ORG in respect of delays in the proceedings before ORG . On DATE ORG found that ORG had violated the applicant 's right to a hearing within a reasonable time , awarded him SKK CARDINAL,CARDINAL in respect of non - pecuniary damage , ordered ORG to proceed with the action promptly and reimburse the legal costs .

The Constitutional Court found that the subject - matter of the proceedings was not of any particular legal or factual complexity . No delays or procedural inactivity could be imputed to the applicant apart from his and his lawyer 's absence at the hearing in DATE .

As to ORG conduct , ORG observed that the action was still pending at first instance without a single decision on the merits having been taken . ORG had been inactive or its treatment of the case had been inefficient and , at times , even erroneous in the period after DATE .


SIJAKU v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

The applicant , Mr GPE , is a national of GPE and GPE , the former GPE , who was born in DATE ; his present whereabouts are unknown as he is under the protection of ORG for the former GPE ( ORG ) as a potential witness . He is represented before the ORG by Mr Ilievski , a lawyer practising in GPE ( former GPE ) .

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

The applicant is an ethnic NORP , who was residing with his family in ORG , GPE ( in the former GPE ) until his arrival in GPE in DATE .

The applicant maintains that in DATE he was forcibly recruited as an informer for the NORP police . From DATE he helped the police to discover and learn about alleged smugglers of cigarettes , drugs and weapons , and other offenders . In DATE , when the security situation in GPE deteriorated , the applicant was directing NORP police to houses in which members of ORG ( “ KLA ” ) , political opponents of the regime , and other ethnic NORP referred to by the police as “ terrorists and separatists ” lived .

In DATE the applicant joined the political party “ NORP Initiative for GPE ” ( “ DIK ” ) , which did not support independence for GPE and promoted tolerance towards the NORP and other ethnic minorities living in the province .

The local NORP marked the applicant as a collaborator of the NORP and a traitor and suspected him of being a member of the “ Black Hand ” organisation ( an alleged NORP terrorist organisation , which was active in the urban parts of GPE province during the clashes between the NORP security forces and the ORG ) .

In addition to shunning and threatening him because of his collaboration with the NORP , the NORP militants disliked the applicant because of his background - his father was a chief in the LOC police and his grandfather had been a judge of ORG - and because of his membership in ORG .

The applicant maintains that DATE after the withdrawal of the NORP security forces from the province of GPE and the arrival of the NATO - led peacekeeping forces ( ORG ) in DATE , he was kidnapped by the ORG . He claims that he was held for DATE in an office in ORG and was questioned about his links with the NORP police . He was not ill - treated on that occasion . After his release , the applicant reported the event to the local headquarters of GPE , but they had not found the kidnappers or taken any other measures .

DATE after that event the applicant was again kidnapped by ORG members . He was taken to the village of ORG , in the municipality of PERSON , where he was held in a cellar for DATE . In the course of his detention , the applicant was interrogated about the “ LOC ” organisation ( the applicant denied being a member of it ) , his connections and collaboration with the NORP police , and about the structure and leaders of the ORG . The applicant alleges that he was constantly kicked and beaten with an electric cable and electrically burned , with the result that he had swellings all over his body . The applicant could not bear the ill - treatment and tried to kill himself ( by slashing his veins ) , but his suicide attempt was unsuccessful . He further alleges that another police collaborator , who was tortured at the same time and place , did not survive the acts of brutality .

The applicant managed to abscond when the vehicle in which he was to be transported to another destination overturned near the village of ORG . He then went into hiding and temporarily stayed at different places . He ultimately returned to his home town of ORG , where he was again discovered by the ORG .

In DATE ( the applicant claims to have no recollection of the exact date ) CARDINAL ORG members attempted to assassinate him in his uncle 's house , using guns with silencers . The incident was reported to ORG and to the field delegate of ORG . Their suggestion was that the applicant should leave GPE .

On DATE , with the assistance of a protection officer of the ORG High Commissioner for Refugees , the applicant was driven to the FAC border - crossing point , where he entered the former GPE .

Upon his arrival in the FYR of GPE , the applicant was granted the status of PERSON Person ( “ ORG ” ) and was subsequently accommodated in a group centre .

On DATE , after the ORG status for NORP expired , the applicant 's representative filed an application with ORG for Foreigners and Immigration Issues ( ORG за внатрешни работи - Сектор за странци и имиграциони прашања ) , requesting that his client be granted refugee status and making mainly the allegations and complaints set out in the application to the ORG .

On DATE the applicant 's representative obtained a memorandum from the office of the ORG in GPE , ORG of GPE , in support of the applicant 's request to be granted refugee status by the national authorities . The memorandum contained a brief statement to the effect that the applicant was regarded by the ORG as an important witness . No other supporting evidence was submitted owing ( so the applicant 's representative maintained ) to the confidentiality of proceedings before the ORG .

By a decision of DATE ORG , following an interview with the applicant on DATE , refused his request . It held that the applicant 's statements had been intentionally false and contradictory , and no well - founded fear that the applicant would be exposed to persecution if returned to his country of origin had been established , as required by law , to justify his being granted refugee status .

On DATE the applicant , through his representative , lodged an appeal with ORG responsible for handling administrative issues arising in the areas of internal affairs , the judiciary , ORG administration , local self - government and religious affairs ( Комисија на Владата нa GPE за решавање во управна постапка во втор степен од областа на внатрешните работи , судството , државната управа , локалната самоуправа и работите од верски карактер ) . He maintained that the first - instance administrative body had erred in fact and failed to provide sufficient reasoning for its decision . The applicant 's representative also argued that the applicant 's case had not been comprehensively reviewed , no regard had been had to the ORG memorandum of DATE , and the decision had been based on personal prejudice against the applicant rather than on his statements and on the evidence submitted .

On DATE ORG , upholding the reasoning given by the first - instance administrative body , dismissed the applicant 's appeal . It stated , inter alia , that after consideration of the first - instance decision , the concerns raised in the appeal and other documents in the case file , no well - founded fear of persecution of the applicant by the ORG in GPE had been established since the applicant 's statements had been assessed as lacking credibility and plausibility . It had also considered the ORG memorandum but had attached no particular weight to it because it was based on the applicant 's false statements .

On DATE the applicant 's representative lodged a complaint with ORG ( GPE суд на PERSON ) , requesting the court to quash the decision of ORG and either grant the applicant refugee status or to set aside that decision and remit the case for re - examination . He maintained that although the applicant 's statements to the effect that members of the ORG had tortured him and attempted to assassinate him had not been supported by documentary evidence , the mere fact that they were detailed , disclosing the names of NORP police officers with whom he used to collaborate and the names of persons who had persecuted , tortured and attempted to kill him , should have been a sufficient ground for believing that they were true . Moreover , the credibility of the applicant 's statements should have not been questioned in view of the ORG memorandum of DATE to the effect that he was regarded as an important witness before that ORG .

In the meanwhile on DATE , the applicant made an application to ORG , requesting that the decision of ORG of DATE should not be enforced pending the outcome of the proceedings before ORG . This was actually a request by the applicant lodged under LAW not to be expelled . However , it appears that no decision was made on the application .

On DATE ORG dismissed the applicant 's complaint on the ground that the applicant had not fulfilled the requirements of section CARDINAL of LAW or those of the DATE LAW relating to ORG as he had failed to substantiate his allegations of persecution in his country of origin . It held , in particular , that the applicant , as a national of GPE , could have enjoyed effective protection , if not in GPE , then in other parts of his country of origin . The court had regard to the applicant 's allegations that he was marked by the NORP as a collaborator of the NORP and that he had been kidnapped and his life had been threatened on account of his past collaboration with the NORP police and his membership of the ORG , but he had failed to provide evidence in support of these allegations . The court further indicated that regard had been had to the memorandum issued by the ORG but , since no other evidence had been submitted in support , it was unable to accept that memorandum as an additional reason for his fears of persecution in his country of origin .

On DATE the applicant 's representative was served with a notice by ORG for Foreigners and Immigration Issues , stating that his client was requested to leave the country by DATE at the latest .

In a letter of DATE to the ORG officer in GPE , the ORG Chief of Investigations , PERSON , confirmed that the applicant was a potential witness and was expected to be called to testify in future trials to be held by the ORG . Furthermore , he stated that in the light of the information available to the ORG ,

“ ... It would not be safe for the applicant to be returned to GPE or GPE due to the very real expectation that his basic human rights would be under threat ... ”

On DATE a request for an interim measure under Rule CARDINAL was lodged with the ORG , which granted it . By letter of DATE , the Government informed the ORG that the applicant would not be expelled and that ORG was investigating with the ORG the possibility of the applicant 's transfer to a third ORG .

On DATE the applicant voluntarily left ORG , which is an open place , the foreigners living there having complete freedom of movement . Ever since then the applicant has been under the protection of the ORG as a potential witness and has been taken to a safe address , which is temporary . In his latest communication to the ORG , the applicant 's representative indicated that the ORG officials with whom he had made contact had stated that the applicant 's current place of residence was dictated by the needs of the ORG and the duration of his stay there was uncertain .

The relevant provisions of ORG ( ORG за движење и престој на странци ) , published in issue no . CARDINAL of the “ Official Gazette of GPE ” , may be summarised as follows .

Section CARDINAL provides , inter alia , that if an alien does not leave the ORG 's territory within the given time - limit , he shall be escorted by an official of ORG to the State border or to the embassy or consulate of his country of origin .

Section CARDINAL stipulates that an alien shall not be expelled from the ORG 's territory if his life will thereby be put in jeopardy owing to his racial , religious or national affiliation or his political beliefs or if he runs the risk of being exposed to torture or inhuman treatment .

Section CARDINAL provides that an alien who left his country because he was persecuted for his democratic political convictions and actions , cultural or scientific activities or because of his national , racial or religious affiliation can be granted refugee status .


Violation of Art. 2 (substantive aspect);Violation of Art. 2;Violation of Art. 3;Violation of Art. 5;Violation of Art. 13+2;No violation of Art. 3

Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska

The applicants are :

CARDINAL ) PERSON , born in DATE ;

CARDINAL ) PERSON , born in DATE ;

CARDINAL ) Mr PERSON , born in DATE ; and

CARDINAL ) PERSON , born in DATE .

The applicants are NORP nationals and residents of the village of PERSON , GPE .

The first applicant is the father and the second applicant is the mother of PERSON , born in DATE . The third and fourth applicants are , respectively , brother and sister of PERSON .

In DATE the applicants and PERSON resided in their privately owned house in the village of PERSON . After the launch of the counter - terrorist operation in GPE , the first applicant and some of his relatives moved to ORG . PERSON , the first applicant ’s other son and the fourth applicant stayed in PERSON to look after the family house .

NORP In DATE federal forces regained control over PERSON . The hostilities ceased and the civil population began to return to the area . PERSON , the fourth applicant and their brother decided to stay in PERSON and not to move to ORG as they had previously planned .

On an unspecified date in DATE the PERSON family ran out of firewood to heat their house . There being no forest area in the vicinity of PERSON , Valid PERSON went to the neighbouring village of ORG where GPE , a relative of the GPE , resided and where he could obtain firewood .

On DATE Valid Gerasiyev and ORG went to the forest to collect firewood in the latter ’s tractor . At a certain moment the tractor started skidding and ORG had to return to the village to fetch a rope . When he returned to the forest on his bike and found PERSON , both men came under fire . They decided to leave the area and abandon the vehicles . While they were trying to leave , a shell hit the tractor and the bike . PERSON was hit by a shell splinter in the back of his arm . The wound did not seem particularly serious but his arm was bleeding .

Later on the same day Valid PERSON and PERSON returned to ORG . The village was also under fire and the residents tried to shelter from the bombing . The men learnt from the local residents that federal forces were bombing the village because a group of rebels had passed through it earlier . Those rebels had been previously forced out of ORG by federal forces .

Having arrived at ORG ’s house , PERSON and PERSON went to the basement to shelter from the bombing . Later on DATE about CARDINAL residents of the village joined them in the basement , among them GPE , GPE and LOC . PERSON They bandaged Valid PERSON ’s arm because the wound was still bleeding .

On DATE the bombing continued and the people stayed in the basement .

On DATE federal forces started a “ sweeping ” operation in ORG . The servicemen ordered everyone to come out of ORG basement and checked their identity documents . They immediately spotted PERSON bandaged arm and asked him how he had been wounded . He did not speak NORP and could not answer the question . When ORG and others tried to explain that he had been wounded while collecting firewood , the servicemen threatened them with their submachine guns and ordered them to remain silent .

At the same time the servicemen brought people out of the neighbouring houses and checked their identities . It turned out that General LOC was in command of the federal forces’ operation in LOC and that he was present during the identity checks . A certain FAC , a police officer from the neighbouring village ORG , tried to stand up for PERSON and the other young men targeted by the servicemen . He addressed General PERSON and asked him why federal forces had remained passive while the rebels had been passing through the village and why were they now trying to find fault with peaceful village residents . According to the written statement by PERSON . PERSON ( see paragraph CARDINAL below ) , in response General PERSON allegedly ordered the servicemen to disarm GPE and to beat him up , which they immediately did .

The servicemen then put PERSON in a ORG minibus which was specifically re - equipped for transporting detained persons and drove away . Residents of the village alleged to have subsequently seen the minibus in the courtyard of ORG military commander ’s office .

On DATE the servicemen took CARDINAL other residents of ORG away . On an unspecified date in DATE the body of QUANTITY of them , PERSON . NORP , was found in the river on the outskirts of the village . The other missing persons were not found .

The applicants have had no news of Valid PERSON since .

The account of the events described above is based on the information contained in the application form ; a written statement made by the first applicant on DATE ; written statements by GPE and GPE dated DATE ; a written statement by DATE , and a written statement by ORG . PERSON made on DATE .

According to the Government , no evidence that Valid PERSON had been abducted by servicemen during a special operation was uncovered during the domestic investigation .

It appears that the applicants returned to LOC around DATE . Having learnt about the abduction of PERSON at about that time , the applicants applied , orally and in writing , to various lawenforcement authorities , seeking information on his whereabouts . Although the first applicant was almost illiterate ( he never went to school ) , he made most of the enquiries in connection with the disappearance of his son , also on behalf of other applicants . At certain points he asked his neighbours for assistance in compiling his complaints . In the applicants’ submission , given the limited level of the first applicant ’s education , he did not keep copies of all his complaints to the authorities .

On DATE the first applicant complained about the disappearance of PERSON to ORG of the Interior ( “ the NORP ” ) .

NORP On DATE ORG of GPE ( “ the NORP prosecutor ’s office ” ) forwarded the first applicant ’s complaint about the disappearance of his son , along with CARDINAL similar complaints by other persons from GPE , to the head of ORG and instructed him to notify the complainants about the decisions taken .

On DATE the ORG replied to the first applicant that PERSON had not been detained on the LOC .

On DATE ( or DATE the copy of the relevant letter is partly illegible ) the NORP prosecutor ’s office forwarded the first applicant ’s complaint about the disappearance of PERSON to the acting prosecutor of PERSON .

On DATE the first applicant filed another complaint about the disappearance of Valid PERSON with the PERSON . It appears that the NORP carried out an inquiry which resulted in a decision of DATE refusing to open a criminal case into the disappearance of the first applicant ’s missing son .

On DATE the prosecutor ’s office of LOC ( “ the district prosecutor ’s office ” ) set aside the decision of DATE and launched a criminal investigation into the disappearance of PERSON under LAW ( aggravated unlawful deprivation of liberty ) . The case file was assigned no . DATE . The investigator ’s decision referred , among other things , to a written statement by ORG to the effect that on DATE about CARDINAL officials of the military commander ’s office of the village of ORG had come to ORG ’s home and had taken away PERSON , and also to the fact that since that time the latter had been missing . It appears that the applicants were notified about that decision .

According to the applicants , after the initiation of the investigation on DATE , they were convinced that the district prosecutor ’s office would search for PERSON and find his abductors . Consequently , for DATE they waited for that body to fulfil its duties . Moreover , each time they enquired , mostly orally , about the progress of the investigation , the officials of the district prosecutor ’s office reassured them that the investigation was under way . It was only in DATE that the first applicant sought professional legal advice in connection with the disappearance of PERSON .

On DATE the first applicant requested the district prosecutor ’s office to provide him with information on the progress of the investigation into the disappearance of his son and to grant him victim status in connection with those proceedings . It does not appear that his request was ever replied to .

On DATE the first applicant filed another complaint with the district prosecutor ’s office , claiming that the investigation into the disappearance of his son had been slow and that he had not had any information on its progress . He requested to be provided with access to the investigation case file and the proceedings to be resumed in the event that they had been suspended .

On DATE the district prosecutor ’s office notified the first applicant that it had granted his request in so far as it concerned the resumption of the investigation and had dismissed the remainder of the complaint .

On DATE the district prosecutor ’s office resumed the investigation in case no . CARDINAL . The decision , in so far as relevant , stated as follows :

“ ... In the present case on DATE [ the district prosecutor ’s office ] initiated a criminal investigation under LAW in connection with the fact that on DATE , during a special operation carried out by federal security forces in the village of ORG , in LOC , a group of unidentified persons in camouflage uniforms , who arrived in a grey PERSON minibus , arrested and took away to an unknown destination PERSON , [ born in ] DATE , resident of the village of PERSON , who was , at the moment of his abduction , at no CARDINAL FAC , the home of [ GPE ] , resident of ORG . The whereabouts of PERSON remain unknown .

On DATE , upon the expiry of the time - limit for the preliminary investigation , the proceedings [ in case no . CARDINAL ] were adjourned .

The decision to suspend the investigation was unfounded and premature and should be set aside as it was issued on the basis of insufficiently verified information about the crime .

The examination [ of the case file ] reveals that not all comprehensive measures aimed at establishing the truth were carried out ; the investigation was incomplete ... In particular , in order to elucidate the circumstances of the crime [ the investigators ] should question the residents of the village of LOC , relatives , neighbours and acquaintances of the missing person , as well as persons from ORG residing in the immediate vicinity of the crime scene . Not all measures necessary to identify other witnesses , eyewitnesses to the crime or the culprits were taken . Furthermore , the investigators did not verify information pertaining to the ownership of the ORG vehicle used by the perpetrators ; a close relative of the missing person was neither questioned nor granted victim status .

An additional investigation should broaden the circle of potential witnesses to the crime , instruct the police to take additional operational and search measures aimed at establishing the whereabouts of the missing person and identifying the perpetrators , to examine all the relevant circumstances of the crime ... ”

On DATE the first applicant was granted victim status in connection with the proceedings in case no . DATE . He was notified about that decision on DATE .

On DATE the first applicant complained to ORG ( “ the ORG ” ) about the refusal of the district prosecutor ’s office to provide him with access to case file no . DATE ( see below ) .

On DATE the district prosecutor ’s office suspended the investigation in case no . DATE owing to the failure to identify those responsible .

On DATE the first applicant formally joined the proceedings in case no . DATE as a civil party . He claimed MONEY ( RUB ) in respect of pecuniary and nonpecuniary damage caused by the offence .

Despite the ORG ’s specific requests , the ORG refused to submit a copy of the entire criminal case file opened into the abduction of the applicants’ relative . They did not put forward any explanation for their failure to do so . The ORG furnished only copies of several ORG statements , the decisions to open and resume the investigation and the ORG requests to various authorities concerning the whereabouts of PERSON , as well as some of the replies to them . Some of the documents provided by the Government were illegible ; others were legible only in part . The information contained in those documents , in so far as they are legible , is summarised below .

On DATE the deputy prosecutor of the AchkhoyMartanovskiy District quashed the decision of DATE , issued by ORG department of the interior ( “ the NORP ” ) and refusing to institute a criminal investigation into the first applicant ’s complaint about the abduction of PERSON . The deputy prosecutor ’s decision stated , in particular , that on DATE the ORG had received the first applicant ’s complaint about the abduction of his son on DATE from house no . CARDINAL , ORG , in LOC . Following a preliminary inquiry , the ORG had refused to open a criminal case . However , their refusal was unlawful because the materials of the preliminary inquiry contained a statement by ORG to the effect that on DATE a group of CARDINAL servicemen from the military commander ’s office of the village of ORG had come to his house at no . CARDINAL , ORG and had taken PERSON away in their bus . By the same decision the deputy prosecutor instituted an investigation into the abduction of PERSON under LAW ( aggravated unlawful deprivation of liberty ) . The case file was assigned the number DATE .

NORP On DATE the investigators interviewed ORG , residing at CARDINAL , PERSON street , ORG , as a witness . He stated that at DATE Valid PERSON had visited him in PERSON and had asked for help in collecting firewood . ORG had given him a tractor and the latter had gone to the forest . At a certain point after his departure unspecified forces had started shelling the village and a group of rebel fighters had entered the village . Civilians had been given the opportunity to leave the village in several buses . ORG had sent his parents away in a bus but had had to stay in ORG . In TIME of the same day unspecified persons had brought PERSON , who had been wounded and was bleeding severely , to his house . When a local doctor , called by ORG , had started bandaging the wound , a group of servicemen of the federal forces had come and taken PERSON away . ORG had himself seen them place the applicants’ relative into a light - grey KAVZ bus with a blue stripe on the side . As they were taking PERSON away , the servicemen had said that they would provide him with the necessary medical assistance . Residents of LOC , GPE A.D. and PERSON . PERSON had been present during Valid PERSON ’s abduction .

On an unspecified date the investigators interviewed the first applicant as a witness . He stated that before DATE his family had resided in the village of LOC and that in DATE they had moved to ORG , except for PERSON and his other son ORG , who had stayed in PERSON . In DATE the first applicant had returned to PERSON but had not found Valid PERSON there . From ORG he had learnt that PERSON had gone to ORG to collect firewood . When the first applicant had gone there , ORG had told him that PERSON had indeed come to ORG and that at that time sweeping operations had been conducted there . Valid PERSON had been wounded and had then been taken away by servicemen who had promised to provide him with medical assistance .

On DATE the investigators interviewed the third applicant as a witness . He stated that in DATE he had left PERSON together with his parents , whilst PERSON and ORG had stayed in the village . The family had gone back to PERSON in DATE and had learnt , after a certain lapse of time , from GPE that PERSON had been at ORG ’s home in LOC and had been wounded while collecting firewood in the forest . At that time there had been clashes between the federal forces and the rebel fighters who had entered the village . At DATE servicemen of the federal forces had taken PERSON from ORG house , had placed him in a ORG bus and had taken him away . Since DATE the ORG had contacted various ORG authorities with complaints about the disappearance of PERSON but had been unable to obtain any information .

On DATE the investigators interviewed PERSON . PERSON as a witness . He submitted that during a special operation in the area in DATE the rebel fighters had been given a free corridor to leave through LOC . They had entered the village on DATE , after which the federal forces had started shelling the village . Sh . PERSON had gone down to ORG ’s basement to hide from the shelling . There he had seen a number of people , including GPE , other neighbours and a wounded young man left behind by the rebel fighters when they had left the village on DATE . On DATE a group of servicemen in camouflage uniforms had ordered everyone out of the basement . Having checked their identity papers , the servicemen took the young man with them .

On DATE the investigators interviewed PERSON as a witness . He stated that at DATE members of illegal armed groups had entered ORG and that the federal forces had been conducting a special operation in the village on DATE . When the federal forces had started shelling the village , PERSON had gone down to ORG ’s basement There PERSON had seen a wounded young man who , according to the other people hiding in the basement , had been from the village of PERSON and had been left behind by the rebel fighters . At QUANTITY on DATE a group of servicemen or police officers had come to the basement , had ordered everyone outside and had checked their identity papers . The servicemen had then taken the wounded man with them .

On DATE was interviewed as a witness . She gave a similar account of the events concerning PERSON abduction to those given by PERSON . PERSON and PERSON

On DATE the investigators interviewed GPE as a witness . He stated that on DATE rebel fighters had entered ORG , following which the village had been blocked off by federal forces which had put the village under fire . As he did not have a basement , GPE went to ORG ’s house , where other residents of ORG were also sheltering . On DATE servicemen had blocked off the basement and ordered everyone in it outside . They had checked the ORG passports and taken away the wounded person .

On DATE the investigation was suspended owing to the failure to identify the perpetrators . The related decision mentioned that a copy of it was to be forwarded to ORG prosecutor but was silent on as to whether it was supposed to be sent to the applicants .

On DATE the deputy prosecutor of the AchkhoyMartanovskiy district set aside the decision of CARDINAL DATE as premature and unfounded . The decision stated that the investigators had not interviewed the residents of PERSON , had not taken steps to identify a number of eyewitnesses to the abduction of PERSON and had not verified the information that he had been taken away in a PERSON vehicle . Moreover , none of the relatives of the missing person has been granted victim status . After the opening of the investigation the investigators were instructed to increase the pool of witnesses to be interviewed and to carry out additional measures to step up the investigation .

DATE . On DATE the first applicant was granted victim status in the proceedings in case no.CARDINAL and interviewed . He confirmed his account of the events surrounding his son ’s abduction and stated , in addition , that ORG had told him that rebel fighters had brought PERSON , wounded , to his house in ORG . The latter had a missile wound to the right forearm and was bleeding . ORG had called the local doctor , NORP , who had tried to stop the bleeding . At about that time a group of servicemen had emerged and had asked the people hiding in the basement to go outside . When they had seen PERSON , they had taken him away , saying that they would provide him with the necessary medical assistance . The servicemen had left in a ORG vehicle .

On DATE the investigators interviewed the second applicant as a witness . She confirmed the account of the events surrounding the abduction of Valid PERSON given by the first applicant .

On DATE the investigators interviewed GPE . , the applicants’ neighbour , as a witness . He stated that he had learnt about the abduction of Valid PERSON from his relatives and relayed the account of the events given by the first and second applicants .

Residents of ORG , TIME , GPE , PERSON , A.Ch . , ORG . , PERSON . P. , ORG . ORG Kh . GPE , GPE , ORG . U. , ORG , PERSON . PERSON and PERSON , interviewed DATE , made similar statements to that of FAC .

On DATE the investigators interviewed ORG as a witness . He stated that in DATE the federal forces had opened a corridor for rebel fighters , who could leave PERSON through ORG . After the rebel fighters had entered the village , the federal forces had started shelling it . When the rebel fighters had left , the servicemen had started a sweeping operation , checking the houses of the residents and their identity papers . PERSON had heard from an acquaintance that the servicemen had taken away a young wounded man from ORG basement . That man had gone to ORG house to collect firewood and had been wounded while in the forest .

On DATE the investigators interviewed ORG , a resident of ORG , as a witness . He submitted that in DATE a corridor had been opened for the rebel fighters to leave from PERSON through ORG . When the rebel fighters had entered the village , the federal forces started shelling it . PERSON had stayed with his family in the basement of his house . When the rebel fighters had left , the servicemen had started a sweeping operation , looking for rebel fighters who might have stayed . PERSON had learnt from GPE that the servicemen had taken away a young man from PERSON , who had come to visit PERSON and ask him for assistance in finding firewood .

Residents of ORG and ORG , interviewed on DATE , gave a similar account of the events concerning the sweeping operation in ORG and the apprehension of PERSON to that given by PERSON

On DATE the investigation in case no . DATE was suspended owing to the failure to identify the perpetrators .

On DATE the decision to suspend the investigation was set aside as premature and unfounded and the investigators were instructed to step up the investigation .

On DATE the investigators interviewed residents of ORG . PERSON . , PERSON , PERSON , PERSON , ORG Kh . , GPE . and PERSON . as witnesses . They gave similar accounts of the events of the sweeping operation in LOC and ORG abduction to that given by ORG

On DATE the investigation in case no . CARDINAL was suspended owing to the failure to identify the perpetrators .

According to the ORG , the investigation in case no . DATE is pending .

On DATE ORG dismissed the first applicant ’s complaint about the district prosecutor ’s office ’s refusal to provide him access to the criminal case file opened into his son ’s abduction and to allow him make copies from it . The court decision stated , among other things , that it transpired from the materials of case file no . DATE that on DATE servicemen of the federal security forces had arrested and taken away PERSON and that the latter had subsequently disappeared . The investigation had obtained information on the involvement of servicemen in the abduction of PERSON . However , it had proved impossible to identify the specific persons who had committed the crime .

On DATE ORG of GPE upheld the decision of DATE on appeal .

For a summary of the relevant domestic law see PERSON and PERSON GPE ( no . CARDINAL , § § DATE , CARDINAL DATE ) .