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

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

On DATE the applicant lent to MONEY ( ORG ) for DATE at a rate of interest of PERCENT . He also lent to ORG , a company in GPE ORG CARDINAL for periods of TIME at a rate of interest of PERCENT .

On DATE he lent to ORG , a company in GPE , CARDINAL NORP PERSON ( ORG ) for periods of DATE at a rate of interest of PERCENT .

As the said companies failed to repay the loans , the applicant instituted CARDINAL sets of proceedings in ORG ( PERSON ) .

On DATE the applicant filed CARDINAL separate civil actions for re - payment of his loans , CARDINAL against GPE , the owner of the company ORG and the other against GPE , the owner of the company N.Š.F.

On DATE the applicant filed yet another action for re - payment of his loan , against ORG

All CARDINAL sets of proceedings are pending before the court of first instance .

Section CARDINAL ( CARDINAL ) of LAW on LAW ( entered into force on DATE - hereinafter “ the DATE LAW ” - Ustavni zakon o PERSON ) reads as follows :

“ ORG may , exceptionally , examine a constitutional complaint prior to exhaustion of other available remedies , if it is satisfied that a contested act , or failure to act within a reasonable time , grossly violates a party ’s constitutional rights and freedoms and that , if it does not act a party will risk serious and irreparable consequences . ”

Section CARDINAL of LAW on the Changes of LAW on FAC ( entered into force on DATE , published in ORG no . CARDINAL of DATE - hereinafter “ LAW DATE ” - PERSON o izmjenama i dopunama PERSON zakona o PERSON sudu PERSON ) introduced a new LAW ( a ) , which subsequently became LAW of LAW on ORG . The relevant parts of that Section read as follows :

( CARDINAL ) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant ’s rights and obligations or a criminal charge against him ...

( CARDINAL ) If the constitutional complaint ... under paragraph CARDINAL of this Section is accepted , the ORG shall determine a time - limit within which a competent court shall decide the case on the merits ...

( CARDINAL ) In a decision under paragraph CARDINAL of this LAW , the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the ORG budget within a term of DATE from the date when the party lodged a request for its payment .


The applicant , Mr 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 .

On DATE the applicant lodged a claim for the division of matrimonial property with ORG ( Sąd Rejonowy ) .

The proceedings were terminated on DATE . On DATE , the date on which the application was lodged with the ORG , they were pending before ORG .

On DATE the Law of CARDINAL DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) entered into force . It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings .

Section CARDINAL of the CARDINAL Act reads , in so far as relevant :

Section CARDINAL reads , in so far as relevant :

“ CARDINAL . A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending . ... ”

Section CARDINAL provides for measures that may be applied by the court dealing with the complaint . It reads , in so far as relevant :

“ CARDINAL . The court shall dismiss a complaint which is unjustified .

NORP If the court considers that the complaint is justified , it shall find that there was an unreasonable delay in the impugned proceedings .

At the request of the complainant , the court may instruct the court examining the merits of the case to take certain measures within a fixed time - limit . Such instructions shall not concern the factual and legal assessment of the case .

NORP If the complaint is justified the court may , at the request of the complainant , grant ... just satisfaction in an amount not exceeding PLN CARDINAL,CARDINAL to be paid by ORG . If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings . ”

Section CARDINAL lays down transitional rules in relation to the applications already pending before the ORG . It reads , in so far as relevant :

“ CARDINAL . Within DATE after the date of entry into force of this law persons who , before that date , had lodged a complaint with ORG ... complaining of a breach of the right to a trial within a reasonable time guaranteed by LAW ... , may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to ORG had been lodged in the course of the impugned proceedings and if the ORG has not adopted a decision concerning the admissibility of their case .

On DATE ORG ( PERSON ) adopted a resolution ( no . III SPP CARDINAL/CARDINAL ) in which it ruled that while LAW produced legal effects as from the date of its date of entry into force ( DATE ) , its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied .


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

The applicant has been a police officer in the service of ORG since DATE .

On DATE he was transferred to perform his duties in PERSON , a town situated in an area previously affected by the Homeland War and classified as an “ area of special state care ” . According to LAW Zakon o područjima od posebne državne skrbi ; “ the LAW ” ) , civil servants performing their duties in these areas had a right to a PERCENT salary increase .

As he did not receive a salary increase , on DATE the applicant filed a civil action with ORG , seeking payment of the amounts due . On DATE ORG declared that it lacked competence to deal with the matter .

On DATE ORG dismissed the applicant 's appeal .

On DATE ORG partially quashed the first and the second instance judgments , and remitted the case to ORG . It found that a part of the applicant 's case fell within the competence of the civil courts .

In the meantime , on DATE ORG enacted LAW Zakon o izmjenama i dopunama zakona o područjima od posebne državne skrbi ; “ the LAW ” ) . The LAW provided that salary increases should only be payable to civil servants who , inter alia , both performed their duties and resided in the areas of special state care .

In the resumed proceedings , on DATE ORG dismissed the applicant 's action , as he did not reside in the area of special state care .

On DATE ORG upheld the first instance judgment and dismissed the applicant 's appeal . On DATE ORG dismissed his request for revision on points of law as inadmissible .

The applicant filed a constitutional complaint . On DATE ORG ( Ustavni sud PERSON ) dismissed his complaint as being lodged outside the statutory time - limit .

The relevant part of LAW ( Zakon o područjima od posebne državne skrbi , ORG no . CARDINAL/CARDINAL ) provides that all civil servants in service with the state administrative bodies in those areas shall receive a PERCENT salary increase in comparison with the salaries in other parts of the ORG .

The relevant part of the LAW to LAW ( Zakon o izmjenama i dopunama zakona o područjima od posebne državne skrbi , ORG no . CARDINAL/CARDINAL ) reads as follows :

“ Natural persons who are domiciled and reside within the areas of special state care .... shall have the rights arising out of this LAW . ”

“ Proceedings to pursue rights arising out of this LAW lodged before DATE of the entry into force of this Act shall be concluded pursuant to the provisions of this Act . ”


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

, may be summarised as follows .

In DATE , the applicant lived with her NORP husband , a pilot in the NORP army , in GPE , hereafter GPE ) . After a period of tension in their marriage , the husband returned to GPE in DATE . While the applicant stayed in GPE , she had an affair with PERSON , a GPE citizen with whom she temporarily shared a flat . The affair ended in DATE . In DATE , the applicant gave birth to her daughter PERSON , PERSON was registered in ORG ’s birth certificate as her legitimate father . The applicant later disputed PERSON ’s parenthood , alleging that she was coerced to agree to that registration . This allegation led PERSON to subject himself to a DNA - test . The test confirmed his fatherhood , but was held in secret . According to the applicant , it is however possible that it was not PERSON ’s DNA material which had been submitted to the test .

In DATE , the applicant returned to GPE with ORG because the applicant ’s father was seriously ill . They now live together with her husband with whom the applicant reconciled . In the applicant ’s submission , her husband could possibly be the father of ORG instead of PERSON The NORP authorities issued a NORP birth certificate for ORG in which the applicant ’s husband was registered as the legitimate father .

Before the applicant left with ORG for GPE in DATE , PERSON had instituted civil proceedings before ORG in order to obtain a declaratory decision that he was PERSON ’s father and in order to obtain the right to custody and access to LOC applicant participated in FAC hearing on DATE by means of a telephone conference . However , the applicant did not attend a court - ordered DNA - test in GPE in DATE . She announced that neither she nor her husband would participate in such a test . On DATE , the San Juan District Court issued an interim order , confirming PERSON ’s parenthood on account of the GPE birth register and a written acknowledgement signed by the applicant that PERSON was PERSON ’s father . Until further orders were made , ORG also provisionally granted PERSON the right to custody ( primäres PERSON ) for ORG and excluded the applicant ’s visiting rights .

In DATE , PERSON also instituted proceedings for interim measures in GPE in order to achieve ORG return to GPE . ORG ( PERSON ) asked PERSON for a certificate of wrongness ( PERSON ) pursuant to LAW hereafter : LAW ) , which was issued by ORG on DATE . In that certificate , ORG stated that : “ ( ... ) Petitioner , [ PERSON ] , had rights of custody under the law of GPE , including rights to make all decisions concerning the PERSON ’s care , custody and control jointly and equally with the respondent . ( ... ) Petitioner was exercising such rights at the time Respondent removed PERSON to GPE . Accordingly , it is the determination of this ORG that respondent violated petitioner ’s custody rights by taking the LAW , by keeping her there and by refusing to allow petitioner to see her , and that Respondent ’s removal of the LAW was ‘ wrongful’ LAW . ( ... ) ”

On DATE , ORG refused PERSON ’s motion and stated that it could not follow LOC opinion as expressed in the above certificate . It found that , in accordance with LAW in conjunction with LAW , the immediate return of a child only had to be ordered when the right to custody of a parent had been violated through the removal of the child . ORG did not find it decisive whether or not FAC decision of DATE , granting PERSON the provisional right to custody , applied retroactively to DATE of N. ’s birth . Nor found the court it decisive whether or not LOC declaratory decision of DATE ( stating that PERSON was the biological father ) applied retroactively to the day of N. ’s birth . Even assuming that PERSON had the right to custody on DATE , he nevertheless had not exercised it . ORG came to this conclusion because PERSON had neither lived any longer with the applicant in a shared flat , nor had he been her partner upon ORG ’s birth . Moreover , he had seen ORG only on rare occasions , he had not paid alimony and he had constantly been away because of his profession as a pilot . ORG considered a testimony of a third person which PERSON had submitted , according to which he had seen ORG only twice in DATE . Moreover , ORG stated that it had been the applicant who had cared for N. The applicant had also paid alimony and otherwise depended on welfare benefits .

On DATE , on appeal by PERSON , ORG ordered the applicant to return PERSON to GPE , or , should she fail to do so , to hand her over in order to ensure her immediate return . ORG also ruled that the execution of the order should not take place until PERSON had deposited an irrevocable order to pay MONEY of alimony on a DATE basis to the applicant for DATE . The alimony for DATE should be deposited and handed out to the applicant upon her arrival in GPE . Moreover , ORG ordered PERSON to rent an apartment in GPE for the applicant and PERSON for DATE . In the event that the applicant should refuse to comply with the order to return ORG , ORG authorised the court ’s bailiff to return the child to GPE . The bailiff was authorised to use force if necessary in order to overcome any resistance by the applicant , to search her apartment and to ensure the child ’s removal .

ORG considered that the applicant , when returning to GPE , had violated PERSON ’s co - existing right to custody . In accordance with ORG , ORG had to be returned to the place where she was before she had unlawfully been removed . ORG had no doubt whatsoever that PERSON was the legitimate father of PERSON , because otherwise the applicant and her husband would have attended the DNA - test in GPE in order to rebut PERSON ’s submissions in the proceedings before FAC . In order to determine whether or not the applicant had wrongfully removed PERSON in DATE , ORG found that the legal situation in GPE had been decisive , irrespective of the fact that under NORP law the applicant would have had sole custody . As GPE had issued the certificate of wrongness on LAW CARDINAL DATE , the removal had to be regarded as having violated PERSON ’s right to custody . Contrary to ORG ruling , the actual lack of exercising the right to custody was not an obstacle as ORG considered that there was a legal presumption under LAW that the right of custody was exercised . The applicant had failed to rebut that presumption . ORG stated that it was sufficient for the purposes of LAW that PERSON occasionally had had access to LOC in the past in order to exercise his right to custody . The court found that PERSON did have access even though the particular extent of the access was disputed between the parties . ORG decided not to apply LAW ( b ) of LAW , according to which the courts may refrain from the order of removal if there exists a serious danger that the child will suffer from physical and psychological damages . It found that the provision had to be narrowly interpreted , given that ORG ’s removal had been unlawful . The danger that ORG suffered physical and psychological damages could in any case be averted if the applicant returned to GPE together with ORG Therefore , ORG had ordered that PERSON had to pay alimony for DATE and the rent for an apartment for the applicant and ORG for DATE while the custody proceedings were pending . As far as the applicant feared that she would be arrested for child abduction upon her arrival in GPE , such fears were as such not sufficient for LAW ( b ) of LAW to apply , unless ORG would be left on her own while the applicant was in prison . Although ORG had initially pointed to that danger in view of PERSON ’s attempt to institute criminal proceedings against the applicant , such danger no longer existed . ORG pointed out that several GPE governmental bodies had given assurances that the applicant would not be subjected to criminal proceedings . Moreover , ORG noted that PERSON had meanwhile withdrawn his motion to institute criminal proceedings against the applicant . Lastly , ORG did not see any indications that FAC , when deciding upon the right to custody in the main proceedings , would fail to take into account ORG ’s interests .

On DATE , ORG refused to admit the applicant ’s constitutional complaint , together with ORG ’s constitutional complaint which had been lodged by the curator ad litem . On DATE , ORG dismissed a motion by the applicant ’s husband and ordered that ORG should be returned to GPE not DATE .

“ The objects of the present Convention are :

( a ) to secure the prompt return of children wrongfully removed to or retained in any ORG ; and

( b ) to ensure that rights of custody and of access under the law of CARDINAL ORG are effectively respected in GPE . ”

“ Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention . For this purpose they shall use the most expeditious procedures available . ”

“ The removal or the retention of a child is to be considered wrongful where :

( a ) it is in breach of rights of custody attributed to a person , an institution or any other body , either jointly or alone , under the law of the ORG in which the child was habitually resident immediately before the removal or retention ; and

( b ) at the time of removal or retention those rights were actually exercised , either jointly or alone , or would have been so exercised but for the removal or retention .

The rights of custody mentioned in sub - paragraph ( a ) above may arise in particular by operation of law or by reason of a judicial or administrative decision , or by reason of an agreement having legal effect under the law of that ORG . ”

“ For the purposes of this Convention -

( a ) ‘ rights of custody’ shall include rights relating to the care of the person of the child and , in particular , the right to determine the child ’s place of residence ;

( b ) ‘ rights of access’ shall include the right to take a child for a limited period of time to a place other than the child ’s habitual residence . ”

“ Where a child has been wrongfully removed or retained in terms of LAW and , at the date of the commencement of the proceedings before the judicial or administrative authority of ORG where the child is , a period of DATE has elapsed from the date of the wrongful removal or retention , the authority concerned shall order the return of the child forthwith .

The judicial or administrative authority , even where the proceedings have been commenced after the expiration of DATE referred to in the preceding paragraph , shall also order the return of the child , unless it is demonstrated that the child is now settled in its new environment .

Where the judicial or administrative authority in the requested ORG has reason to believe that the child has been taken to another ORG , it may stay the proceedings or dismiss the application for the return of the child . ”

“ Notwithstanding the provisions of DATE , the judicial or administrative authority of the requested ORG is not bound to order the return of the child if the person , institution or other body which opposes its return establishes that :

( a ) the person , institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention , or had consented to or subsequently acquiesced in the removal or retention ; or

( b ) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation .

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views .

In considering the circumstances referred to in this LAW , the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by ORG or other competent authority of the child ’s habitual residence . ”

“ The judicial or administrative authorities of a Contracting ORG may , prior to the making of an order for the return of the child , request that the applicant obtain from the authorities of the ORG of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of LAW , where such a decision or determination may be obtained in that ORG . ... ”

“ The return of the child under the provisions of LAW may be refused if this would not be permitted by the fundamental principles of the requested ORG relating to the protection of human rights and fundamental freedoms . ”


CASE OF STRELTSOV AND OTHER "NOVOCHERKASSK MILITARY PENSIONERS" CASES v. RUSSIA

Violations of Art. 6-1;Violations of P1-1;Remainder inadmissible;Pecuniary damage and non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The CARDINAL applicants were born on the dates listed in GPE I and live in GPE , GPE .

NORP , may be summarised as follows .

The applicants , retired military officers , sued the military commissariats of GPE and GPE for recalculation of their pensions . CARDINAL group of the applicants sought adjustment of the pension to the minimum wage and claimed arrears for DATE in line with the increase in the latter . Another group of the applicants claimed recalculation of their pensions on account of the increase of the monetary compensation paid in respect of the food allowance . Several applicants raised both types of claims before the domestic courts .

On the dates listed in ORG I the domestic courts found in the applicants ' favour . As regards the case no . CARDINAL by PERSON , the judgment of DATE was issued by the Justice of the Peace of the CARDINALth ORG . The judgment of CARDINAL DATE in favour of PERSON , as well as all the judgments in favour of the remaining DATE applicants , were issued by ORG of GPE .

The court ordered in respect of the first type of the claims that the pensions be adjusted to the minimum wage and that the arrears be paid to the applicants . As concerns the second type of the claims , the court held that the pensions should be increased in line with the increase of the DATE food allowance and awarded the applicants the respective lump sums in arrears . The awards were made against ORG of GPE , while the respective claims against the commissariat of GPE had been dismissed .

NORP The representatives of ORG of GPE were present at the court room on DATE and DATE .

In several cases the respondent authority introduced the grounds of appeal with ORG . However , on various dates in DATE the respondent authority revoked their applications . For example , in case of Mr Turutin ( no . CARDINAL/CARDINAL ) the grounds for appeal were revoked on DATE . As a result , none of the judgments was appealed against . They entered into force DATE .

The applicants took various steps to obtain execution of the judgment . In particular , the Government submitted that in DATE Mr Sobolev , PERSON and DATE other applicants sent the writs of execution to the respondent authority . It follows from the incoming correspondence log of the Rostov ORG that the latter received the writs .

NORP In DATE the military prosecutor 's office started an inquiry into lawfulness of proceedings concerning military pension arrears throughout GPE and detected several instances of fraud . In particular , they found out that the respondent commissariat on several occasions had made payments against forged writs of execution issued in the similar but unrelated proceedings . On various dates the enforcement proceedings in the cases at hand were suspended pending the region wide inquiry , because the prosecutor 's office had to establish authenticity of the writs of execution issued in the applicants ' cases . It appears that the investigation did not reveal any evidence of fraud in the present cases .

According to the Government , in DATE judge A. who had issued the judgments in question was dismissed by the decision of ORG of GPE . At some point several high officials of ORG of GPE had been charged with and convicted of embezzlement .

As regards the group of CARDINAL applicants named in Part A of Annex I , the domestic awards in their favour were fully executed by the respondent authorities on the dates specified in the table . As concerns the remaining applicants whose names are listed in Part B of ORG I , CARDINAL judgment in their favour has remained unenforced .

On various dates in DATE the respondent commissariat applied for the supervisory review of the judgments .

According to the ORG 's observations , CARDINAL requests for review were lodged outside the DATE time - limit from the date of the judgment 's entry into force . In such cases , the respondent authority also applied for extension of the time - limit for application for supervisory review arguing that it had not received copies of the respective first instance judgments in time and had only been informed of the judgments in DATE , when the prosecutor 's inquiry had been opened . On various dates ORG allowed these applications . In particular , in case of PERSON ( no . CARDINAL/CARDINAL ) the ORG on DATE accepted the authority 's argument that they had been unaware of the judgment , having found , in particular , as follows :

“ There is no evidence in the case materials to the effect that a copy of the judgment of DATE ... had been sent to ORG of GPE . It follows from the above that the [ respondent commissariat ] had a real opportunity to avail itself of its right to apply for supervisory review within DATE . ”

ORG made similar findings in respect of CARDINAL remaining cases .

Enforcement of the unexecuted domestic judgments had been suspended pending the supervisory review .

On various dates in DATE ORG allowed the applications for supervisory review of the judgments lodged by the military commissariat of GPE and remitted the matter for examination on the merits to the Presidium of the Rostov Regional Court .

On the dates specified in GPE I the Presidium of the Rostov ORG quashed the judgments in the applicants ' favour and remitted the cases for a fresh consideration . In each case the ORG concluded that the first - instance court had erroneously applied the substantive law . They also found that ORG had lacked territorial jurisdiction to examine the cases . The arrears were awarded against ORG of GPE and thus the cases should have been examined by a court in LOC of GPE - on - Don where the respondent commissariat was located .

NORP The cases were considered afresh by ORG of PERSON - on - Don .

According to the Government , PERSON ( application no . ORG ) modified the scope of his claim in the new round of the proceedings concerning the adjustment of his pension to the increase of the minimum wage . On DATE ORG granted his action in full and ordered that he be paid MONEY ( RUB ) . The judgment was executed . The parties did not submit copies of the respective statement of claims and judicial decision .

As regards the remaining applicants , the court either discontinued the proceedings or dismissed the applicants ' claims . The particulars of the respective proceedings are summarised in GPE I below .

Under LAW of DATE ( in force from DATE ) , judicial decisions that have become legally binding , with the exception of judicial decisions by the ORG of ORG of GPE , may be appealed against to a court exercising supervisory review , by parties to the case and by other persons whose rights or legal interests have been adversely affected by the judicial decisions concerned ( § CARDINAL ) . Judicial decisions may be appealed against to a court exercising supervisory review within DATE after they became legally binding ( § CARDINAL ) . By its ruling of CARDINAL DATE , ORG interpreted LAW as allowing the above - mentioned persons to apply for supervisory review only after having exhausted all available ordinary appeals

For the summary of other applicable provisions of the domestic law , see PERSON v. GPE , no . CARDINAL , § § DATE .

LAW provides that a civil claim is to be filed with the court with territorial jurisdiction over the defendant 's place of residence . A claim against the organisation is to be filed with the court having territorial jurisdiction over the organisation 's residence . According to LAW , where a claim is filed against several defendants having different places of residence , a claim is to be lodged with a court having territorial jurisdiction over one of the defendants , upon the claimant 's choice .

Succession is regulated by Part CARDINAL of LAW . The succession includes the deceased 's property or pecuniary rights or claims but does not include rights or obligations intrinsically linked to the deceased 's person , such as alimony or a right to compensation for health damage ( Article CARDINAL ) . An heir should claim and accept succession , as well as obtain a succession certificate from a public notary ( Articles DATE , DATE ) . The right to receive the amounts of salary and payments qualifying as such , pension and other amounts of money provided to the deceased person as means of subsistence which had been payable but had not been received in his lifetime shall belong to the members of the deceased 's family who had been residing together with him and also his disabled dependants , irrespective of their having resided with the deceased or not ( Article CARDINAL § CARDINAL ) . In accordance with section CARDINAL of LAW ( DATE ) , as in force at the material time , the amount of pension due to a pensioner but not received in his lifetime shall belong to the members of the deceased 's family if they were in charge of his or her funeral , and shall not be included in the succession .


Violation of Art. 6-1;Not necessary to examine Art. 6-2;Not necessary to examine Art. 6-3-a;Preliminary objection regarding Art. 10 dismissed (non-exhaustion of domestic remedies);Violation of Art. 10;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings

Gaukur Jörundsson;Luzius Wildhaber;Nicolas Bratza

The applicant was born in DATE and lives in GPE .

He is an advocate who has been practising for DATE . He was formerly a lawyer at ORG and a member of ORG .

On DATE the applicant was defending a person accused of murder before ORG . He alleged that , while he was conducting the cross - examination of a prosecution witness , a police constable , the court interrupted him after he had put a question to the witness . He claimed that he had felt offended and had sought permission to withdraw from the case . In their written observations , the ORG stated that the court had attempted to make a routine intervention with a simple and polite remark regarding the manner in which the applicant was cross - examining the witness . The applicant had immediately interrupted , without allowing the court to finish its remark and refusing to proceed with his cross - examination .

The verbatim record of the proceedings reports the following exchange ( translation ) :

“ Court : We consider that your cross - examination goes into detail beyond the extent to which it should go at this stage of the main trial regarding questions ...

Applicant : I will stop my cross - examination ...

Court : Mr Kyprianou ...

Applicant : Since the ORG considers that I am not doing my job properly in defending this man , I ask for your leave to withdraw from this case .

Court : Whether an advocate is to be granted leave to withdraw or not is a matter within the discretionary power of the court and , in the light of what we have heard , no such leave is granted . We rely on GPE and Others v. the Republic and we do not grant leave .

Applicant : Since you are preventing me from continuing my cross - examination on significant points of the case , then my role here does not serve any purpose .

Court : We consider your persistence ...

Applicant : And I am sorry that when I was cross - examining the members of the ORG were talking to each other , passing ravasakia among themselves , which is not compatible with allowing me to continue the cross - examination with the required vigour , if it is under the secret scrutiny of the ORG .

Court : We consider that what has just been said by PERSON , and in particular the manner in which he addresses the ORG , constitutes a contempt of court and PERSON GPE has CARDINAL choices : either to maintain what he said and to give reasons why no sentence should be imposed on him , or to decide whether he should retract . We give him this opportunity exceptionally . Section CARDINAL(CARDINAL)(a ) of ORG PERSON applies to its full extent .

Applicant : You can try me .

Court : Would you like to say anything ?

Applicant : I saw with my own eyes the small pieces of paper going from one judge to another when I was cross - examining , in a way that is not very flattering to the defence . How can I find the stamina to defend a man who is accused of murder ?

Court ( Mr PERSON ) : It so happens that the piece of paper to which Mr PERSON refers is still in the hands of brother Judge PERSON and PERSON may inspect it .

Court ( PERSON ) : The exchange of written views between the members of the bench as to the manner in which Mr PERSON is conducting the case does not give him any rights , and I consider Mr GPE 's behaviour utterly unacceptable .

Court ( Mr PERSON ) : We shall have a break in order to consider the matter . The defendant [ in the main trial ] should in the meantime remain in custody .

Court : We considered the matter during the adjournment and continue to believe that what Mr PERSON said , the content , the manner and the tone of his voice , constitute a contempt of court as provided for in section CARDINAL(CARDINAL)(a ) of ORG ( no . CARDINAL/CARDINAL ) ... that is showing disrespect to the court by way of words and conduct . We already asked PERSON before the break if he had anything to add before we pass sentence on him . If he has something to add , let us hear him . Otherwise , the ORG should proceed .

Applicant : Mr President , during the break , I certainly wondered what the offence was which I had committed . The events took place in a very tense atmosphere . I am defending a very serious case ; I felt that I was interrupted in my cross - examination and said what I said . I have been a lawyer for DATE , my record is unblemished and it is the first time I have faced such an accusation . That is all I have to say .

Court : We shall adjourn for TIME and shall then proceed with sentencing . ”

After a short break ORG , by a majority , sentenced the applicant to DATE imprisonment . The court referred to the above exchange between the applicant and its members and held as follows :

“ ... It is not easy , through words , to convey the atmosphere which Mr PERSON created since , quite apart from the unacceptable content of his statements , the tone of his voice as well as his demeanour and gestures to the ORG , not only gave an unacceptable impression of any civilised place , and a courtroom in particular , but were apparently aimed at creating a climate of intimidation and terror within the ORG . We are not exaggerating at all in saying that PERSON was shouting at and gesturing to the ORG .

It was pointed out to him that his statements and his behaviour amounted to contempt of court and he was given the opportunity to speak . And while there was a reasonable expectation that Mr Kyprianou would calm down and that he would apologise , PERSON , in the same tone and with the same intensity already referred to , shouted , ' You can try me ' .

Later , after a long break , PERSON was given a second chance to address the ORG , in the hope that he would apologise and mitigate the damage caused by his behaviour . Unfortunately , at this stage Mr GPE still showed no signs of regret or , at least , of comprehension of the unacceptable situation he had created . On the contrary , he stated that during the break he wondered what his crime had been , merely attributing his behaviour to the ' very tense atmosphere ' . However , he was solely responsible for the creation of that atmosphere and , therefore , he can not use it as an excuse .

Mr PERSON did not hesitate to suggest that the exchange of views between the members of the bench amounted to an exchange of ' ravasakia ' , that is , ' love letters ' ( See Dictionary of Modern Greek – ' NORP ravasaki ( NORP ravas ) , love letter , written love note ' ) . And he accused the ORG , which was trying to regulate the course of the proceedings , as it had the right and the duty to do , of restricting him and of doing justice in secret .

We can not conceive of another occasion of such a manifest and unacceptable contempt of court by any person , let alone an advocate .

The judges as persons , whom PERSON has deeply insulted , are the least of our concern . What really concerns us is the authority and integrity of justice . If the ORG 's reaction is not immediate and drastic , we feel that justice will have suffered a disastrous blow . An inadequate reaction on the part of the lawful and civilised order , as expressed by the courts , would mean accepting that the authority of the courts be demeaned .

It is with great sadness that we conclude that the only adequate response , in the circumstances , is the imposition of a sentence of a deterrent nature , which can only be imprisonment .

We are well aware of the repercussions of this decision since the person concerned is an advocate of long standing , but it is PERSON himself who , through his conduct , has brought matters to this end .

In the light of the above we impose a sentence of imprisonment of DATE . ”

NORP The President of ORG , however , considered that the imposition of a fine amounting to QUANTITY ( MONEY ) , that is , the maximum penal sum provided by LAW ) of ORG Law CARDINAL ( Law no . CARDINAL/CARDINAL ) , would have been the appropriate sentence .

The applicant served his prison sentence immediately . He was in fact released before completing the full term , in accordance with section CARDINAL of the Prison Law ( Law no . DATE see paragraph CARDINAL below ) .

On DATE the applicant lodged an appeal with ORG , which was dismissed on DATE .

In his appeal , the applicant relied on a total of CARDINAL grounds challenging the procedure followed by ORG , its decision and the sentence imposed on him . The eighth ground of his appeal read as follows :

“ According to established precedent , the imposition of a sentence on an advocate is practised with restraint and in serious cases , and never for the suppression of methods of advocacy that are simply offensive given that the advocate has sufficient freedom in the handling of his client 's case . The conduct of the [ applicant ] counsel could not be described either as aggressive or as contemptuous of the ORG under all the circumstances even though it constituted expression of the feelings of counsel under the pressure of cross - examination of witnesses in a murder case and the refusal of the ORG after an intervention at the stage of cross - examination to allow counsel to withdraw from the case . ”

The Attorney - General was invited by ORG to take part in the proceedings as amicus curiae .

NORP In its decision dismissing the applicant 's appeal , ORG stated that the relevant constitutional provisions of NORP law on contempt of court reflected the principles of LANGUAGE law . It relied on LAW , which enables the enactment of legislation giving jurisdiction to any court to order the imprisonment for DATE of any person who does not comply with a judgment or order of that court , and to punish contempt of court . It held that section CARDINAL(CARDINAL ) of ORG was lawfully authorised by Article CARDINAL . Finally , it concluded that it was the applicant who had created a tense atmosphere by his disdainful attitude and by undermining the court 's role .

ORG held , inter alia :

“ We think that there was nothing wrong in the determination of the acts of contempt . The ORG gave Mr PERSON the chance to reply , predetermining indirectly its intention not to continue with imposing a sentence , should Mr GPE dissociate himself from what he had said and did so with an expression of sincere apology . There was no apology .

It is our finding that PERSON , by words and conduct , showed disrespect to the ORG , by committing the offence of contempt of court referred to in section CARDINAL(CARDINAL ) of the PERSON .

It is not fortuitous that the successive objectives of the constitutional legislator , which are embodied in LAW CARDINAL of the LAW , exist side by side . The power to sanction contempt of court is aimed at the protection of judicial institutions , which is essential in order to safeguard a fair trial . The identification of the judge with a prosecutor made by the applicant 's lawyer overlooks the court 's role and the purpose for which it is granted authority . Its authority is interwoven with the prerequisites for securing its judicial function . The role of the judge is nothing more than that of the defender of judicial proceedings and of the court 's authority , the very existence of which are necessary to secure a fair trial . A lawyer , a servant of justice , is not a party to the case . By abusing the right to be heard and being in contempt of court , a lawyer intervenes in the proceedings , as any third party , and interferes with the course and thereby harms justice . The judicial sanctioning of contempt , where necessary , is a judicial duty exercised for the purpose of securing the right to a fair trial . The impersonal and objectively defined issue is associated with the facts of the case ; any indifference of the court in the face of reproach regarding its function would leave it exposed to the charge that it does not conduct a fair trial . The fairness of the judges is the quintessence of the administration of justice .

In this case , PERSON tried to prevail over the court and direct the course of the trial . If the court remained indifferent before such a scene , this would constitute a betrayal of the performance of its duty . ”

ORG concluded as follows :

“ We find that PERSON , by words and conduct , showed disrespect to the court and committed the offence of contempt in the face of the ORG contrary to section CARDINAL ) of the PERSON . ”

In relation to the sentence imposed on the applicant , ORG stated , inter alia , the following :

“ The exercise of the power of the court to impose sentence on persons who act in contempt of court is the ultimate measure , but it is indispensable whenever the dignity of the court is offended and the fulfilment of its mission impeded . Punishment is not a court 's choice . It becomes its duty only when justice demands it . It is indicative of the rarity of a lawyer 's conviction for contempt of court that this is the first time , since the establishment of the Republic , as far as we are able to ascertain , that a sentence of imprisonment has been imposed on a lawyer for contempt of court . This attitude is not unrelated to the awareness of the lawyer 's mission . It is not possible , however , to allow the legal profession to act contrary to the lawyer 's function . The lawyer who repudiates his role as a servant of justice also repudiates the protection that is given to him for putting his client 's rights forward without fear or distraction . In setting himself against the court for his own purposes , he acts contrary to his vocation and shares the same fate as everyone else who acts in contempt of court .

It is sad that PERSON did not withdraw what he said and did in ORG . He did not apologise , even before us .

It was up to ORG to deal with the contempt and to decide the means for the treatment and punishment of the person in contempt . No reason has been shown which justifies our intervention with regard to the sentence imposed .

We feel sad because a lawyer like PERSON , with DATE of service in the profession , was convicted and sentenced to imprisonment for contempt of court . But we are even sadder because a lawyer with so many years in service struck at ORG . We are relieved this is the first time that ORG has suffered in this way . We hope that this will also be the last time . ”

The relevant parts of LAW and CARDINAL of the LAW provide as follows :

“ CARDINAL . Every person charged with an offence shall be presumed innocent until proved guilty according to law .

Every person charged with an offence has the following minimum rights :

( a ) to be informed promptly and in a language which he understands and in detail of the nature and grounds of the charge preferred against him ;

( b ) to have adequate time and facilities for the preparation of his defence ;

“ CARDINAL . In the determination of his civil rights and obligations or of any criminal charge against him , every person is entitled to a fair and public hearing within a reasonable time by an independent , impartial and competent court established by law .

Every person has the right :

( a ) to be informed of the reasons why he is required to appear before the court ;

( b ) to present his case before the court and to have sufficient time necessary for its preparation ;

Article CARDINAL § CARDINAL of the LAW reads as follows :

“ The Attorney - General of the Republic shall have power , exercisable at his discretion in the public interest , to institute , conduct , take over and continue or discontinue any proceedings for an offence against any person in the Republic . Such power may be exercised by him in person or by officers subordinate to him acting under and in accordance with his instructions . ”

Article CARDINAL of the LAW reads as follows :

“ The High Court shall have jurisdiction to punish any contempt of itself , and any other court of the Republic , including a court established by a communal law under LAW , and shall have power to commit any person disobeying a judgment or order of such court to prison until such person complies with such judgment or order , and in any event for a period not exceeding DATE .

A law or a communal law , notwithstanding anything contained in LAW , as the case may be , may provide for the punishment of contempt of court . ”

Section CARDINAL(CARDINAL ) reads as follows :

“ Subject to the provisions of LAW , but save as otherwise provided in the subsection , every decision of a court exercising criminal jurisdiction shall be subject to appeal to ORG . Any such appeal may be made as of right on any ground against a decision of acquittal or conviction or a decision imposing sentence . ”

Section CARDINAL(CARDINAL ) provides as follows :

“ Notwithstanding anything contained in LAW or in any other PERSON or in any Rules of Court and in addition to any powers conferred thereby , ORG , on hearing and determining any appeal either in a civil or a criminal case , order of retrial by the trial court or any other court having jurisdiction , as ORG may direct . ”

The relevant parts of section CARDINAL(CARDINAL ) read as follows :

“ Any person who –

( a ) on the premises where any judicial proceedings are being held or taken , or within the precincts of the same , shows disrespect , in speech or manner , of or with reference to such proceedings or any person before whom such proceedings are being held or taken ;

... is guilty of a misdemeanour and is liable to imprisonment for DATE or to a fine not exceeding QUANTITY , or to both imprisonment and a fine . ”

The relevant parts of section CARDINAL(CARDINAL ) provide as follows :

“ When any offence against paragraph ( a ) ... of subsection ( CARDINAL ) is committed in full view of the court , the court may cause the offender to be detained in custody and , at any time before the rising of the court on DATE , may take cognisance of the offence and sentence the offender to a fine of QUANTITY or to imprisonment of DATE , or to both imprisonment and a fine . ”

The relevant parts of section CARDINAL provide as follows :

“ ( CARDINAL ) In determining an appeal against conviction , ORG ... may

( a ) NORP dismiss the appeal ;

( b ) allow the appeal and quash the conviction if it considers that the conviction should be set aside on the ground that it was , having regard to all the evidence adduced , unreasonable or the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law or on the ground that there was a substantial miscarriage of justice :

Provided that ORG , notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the applicant , shall dismiss the appeal if it considers that no substantial miscarriage of justice has occurred ;

( c ) set aside the conviction and convict the appellant for any criminal offence of which he might have been convicted by the trial court on the evidence which has been adduced and sentence him accordingly ;

( d ) NORP order a new trial before the court which passed the sentence or before any other court having jurisdiction in the matter .

( CARDINAL ) In determining an appeal against sentence , ORG may increase , reduce or modify the sentence . ”

The relevant parts of section CARDINAL read as follows :

“ During the hearing of an appeal and at any stage thereof , before final judgment , ORG ... may

( a ) call upon the trial court to furnish any information ORG may think necessary beyond that which is furnished by the file of the proceedings ;

( b ) hear further evidence and reserve judgment until such further evidence has been heard ... ”

“ ( CARDINAL ) NORP Whenever , upon application as hereinafter provided , it is made to appear to ORG :

( a ) that a fair and impartial preliminary inquiry or trial can not be held in any court ;

it may order that the preliminary inquiry or trial be held by or before a court other than the court before which , but for such order , it would have been held .

( CARDINAL ) Every application for the exercise of the powers conferred by this section shall be made by motion which shall , except when the application is made by or on behalf of the Attorney - General , be supported by affidavit .

( CARDINAL ) When an accused makes an application under this section , ORG may , if it thinks fit , direct him to execute a bond with or without sureties conditioned that he will , if convicted , pay the costs of the prosecution .

( CARDINAL ) Every accused making any such application shall give to the Attorney - General notice in writing of the application , together with a copy of the affidavit and no final order shall be made on the application , unless such notice and affidavit are served CARDINAL before the hearing of the application . ”

Section CARDINAL of the Advocates PERSON reads as follows :

“ Every advocate is an officer of justice and shall bear disciplinary responsibility and be subject to disciplinary proceedings provided for in this part . ”

The relevant parts of section CARDINAL read , at the material time , as follows :

“ ( CARDINAL ) If any advocate is convicted by any court of any offence which , in the opinion of ORG , involves moral turpitude or if such an advocate is , in the opinion of ORG , guilty of disgraceful , fraudulent or unprofessional conduct , ORG may :

( a ) NORP order the name of the advocate to be struck off ORG ;

( b ) suspend the advocate from practising for such a period as it may think fit ;

( c ) NORP order the advocate to pay , by way of fine , any sum not exceeding £ CARDINAL ;

( d ) warn or reprimand the advocate ;

( e ) make such order as to payment of the costs of the proceedings before ORG as ORG may think fit .

( CARDINAL ) Proceedings to enforce any of the penalties provided by subsection ( CARDINAL ) above may be commenced :

( a ) by ORG on its own motion ;

( b ) by the Attorney - General of the Republic ;

( c ) on a report made to ORG by any court or chairman of the local Bar committee ;

( d ) by an application , with leave of ORG , of any person aggrieved by the conduct of the advocate . ”

The relevant parts of section CARDINAL of the Prison Law read as follows :

( CARDINAL ) NORP The release of a prisoner takes place not later than midday of the final day of the sentence of imprisonment .

( CARDINAL ) NORP If the day of release is a DATE or DATE or an official holiday , the release takes place the immediately preceding working day . ”

Phaedeon Economides v. The Police ( DATE ) CARDINAL Cyprus Law Reports CARDINAL

“ An objection , where a bias is alleged , has to be taken at the earliest moment in the proceedings and has to be decided by the judge concerned whose decision is always subject to judicial review by appeal or by means of prerogative writs where no appeal lies from his final decision in the proceedings on which the question of bias was raised .

On the question of bias , the test to be applied is whether a reasonable and fair - minded person sitting in court and knowing all the relevant facts could have reasonable suspicion that a fair trial for the applicant was not possible . ”

The NORP word ραβασάκια ( ravasakia ) is the plural of the word ραβασάκι ( ravasaki ) which has the following meanings :

( CARDINAL ) PERSON , ORG , p. CARDINAL ( Γ. Μπαμπινιώτη , PERSON ) :

( i ) NORP short and secret letter or note with love content ( σύντομη και κρυφή επιστολή ή σημείωμα με ερωτικό περιεχόμενο ) ;

( ii ) anything written ( document , letter , etc . ) , mainly of an unpleasant nature , which is sent to someone . Synonyms : for example , letter , note ( οτιδήποτε γραπτό ( έγγραφο , επιστολή κτλ ) , κυρίως. με δυσάρεστο περιεχόμενο , το οποίο αποστέλλεται σε κάποιον. Συνώνυμα π.χ. γράμμα , σημείωμα ) .

( CARDINAL ) ORG , ORG , DATE , p. CARDINAL ( PERSON , Το Μεγάλο NORP της PERSON ) :

( i ) note ( σημείωμα ) ;

( ii ) love letter ( ερωτικό γράμμα ) .

( CARDINAL ) NORP University Thessaloniki , ORG , Dictionary of the Common Μodern Greek , p. CARDINAL ( NORP της ORG , PERSON , PERSON ) :

( i ) love letter , note ( that is sent secretly ) ( ερωτική επιστολή , σημείωμα ( που στέλνεται κρυφά ) ) ;

( ii ) short written message normally of an unpleasant nature ( warning , threats , etc . ) for the recipient ( σύντομο γραπτό μήνυμα , συνήθως με δυσάρεστο ( προειδοποιητικό , απειλητικό ) κτλ περιεχόμενο για τον παραλήπτη ) .

In general , it can be observed that common - law jurisdictions and some civil - law jurisdictions allow courts to deal with disruption to their proceedings under a summary procedure conducted by the judge presiding over the main proceedings who is empowered to take immediate measures . In the majority of civil - law jurisdictions , however , disruptive behaviour is referred to the competent prosecuting authorities for the purposes of instituting criminal or disciplinary proceedings . In this latter respect there is a significant difference between the common - law and civil - law approaches .

The following paragraphs contain a summary of the information provided by the third - party intervening GPE as to the current position under their domestic law concerning contempt of court .

Under LANGUAGE and LANGUAGE law , the courts enjoy extensive powers to deal with contempt of court , including contempt committed in facie curiae which falls within the category of criminal contempt . Acts which amount to contempt in the face of the court can take various forms such as assaulting the judge or an officer of the court in court , insulting the judge in court , intimidating a witness in court , interrupting the proceedings and tape recording or photographing the proceedings . If the contempt also constitutes a criminal offence , for example assault , it can be dealt with as a criminal offence instead and thus proceedings can be initiated by ORG following investigation by the police .

The power to commit for contempt in facie curiae is a part of the common law , developed by the courts through judicial decisions . This remains true as far as superior courts ( ORG , ORG and ORG ) are concerned . In the case of inferior courts , the power to commit for contempt in facie curiae has been placed on a statutory footing ( Contempt of Court Act DATE , section CARDINAL , and LAW DATE , section CARDINAL(CARDINAL ) ) . A practice note and a practice direction have been issued addressing contempt of court . CARDINAL applies in magistrates ' courts and the other in ORG and county courts ( practice note issued by the Lord Chief Justice in DATE and practice direction issued by the Lord Chief Justice , supplemental to Order no . CARDINAL of the Rules of ORG and Order no . CARDINAL of ORG ) .

According to the latter , for example , where the committal application relates to contempt in the face of the court it would normally be appropriate to defer consideration of the behaviour to allow the respondent a period of reflection . Furthermore , the judge should , inter alia : inform the respondent in detail , and preferably in writing , of the actions and behaviour of the respondent which have given rise to the committal application ; notify the respondent of the possible penalties he faces ; allow the respondent an opportunity to apologise to the court and provide explanations for his actions and behaviour ; and allow for arrangements for legal representation . In addition , if there is a risk of the appearance of bias , the presiding judge should ask another judge to hear the committal application ( sections CARDINAL of the practice direction ) .

Overall , judges have the power to deal with and punish contempt committed before them , although the courts have recognised that this summary procedure should be used exceptionally and when categorically necessary in the interests of justice . Thus , while accepting that the procedure must retain a summary nature in order for it to be effective , the courts have also sought to ensure that the procedure is fair and consistent with the provisions of LAW . ORG , through its judgments , has given courts guidance as to the safeguards they need to adopt in order to ensure that the summary process is fair for the alleged contemner . These include , inter alia , allowing a short period of reflection , the possibility of an adjournment , arrangements for legal representation , and giving an opportunity to apologise ( see PERSON [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ; NORP v. PERSON [ DATE ] Criminal Law Reports CARDINAL ; and PERSON DATE ] CARDINAL All England Reports CARDINAL ) . It appears from the case - law that the courts have acknowledged the importance of avoiding the danger of a real possibility of bias , the applicable test being that of “ apparent bias ” , namely , whether the circumstances would lead a fair - minded and informed observer to conclude that there was a real possibility that the court was biased ( see ORG v. ORG [ DATE ] CARDINAL All England Reports CARDINAL , and PERSON v. PERSON [ DATE ] CARDINAL Appeal Court CARDINAL ) . ORG recently stated in NORP v. PERSON ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) that the common - law requirements of natural justice in dealing with criminal contempt did not fall short of the Convention requirements .

The offence of contempt of court in GPE is a sui generis offence . With limited exceptions , the law on contempt remains part of the common law . Contempt committed in facie curiae is normally dealt with summarily by the presiding judge . Where it also amounts to a criminal offence , it may be prosecuted on indictment or on summary complaint .

While the procedure remains in essence a summary one , in practice measures have been put in place in order to ensure fairness . In particular , judges follow a memorandum issued on DATE by the Lord Justice - General that provides guidelines concerning the procedure to be adopted when judges are considering whether the conduct of any party during a trial constitutes a contempt of court . For instance , the act of contempt should be dealt with expeditiously but most importantly fairly and objectively ; the alleged contemner must be given the opportunity to obtain legal advice and representation , to apologise for his conduct and make a statement in mitigation . Furthermore , although the normal rule is that the presiding judge will deal personally with the contempt , it is recognised that , exceptionally , another judge may need to deal with the case .

NORP Under NORP law , contempt of court is an offence sui generis within the inherent jurisdiction of the court . Contempt in facie curiae comes within the ambit of criminal contempt and is tried summarily by both superior and inferior courts .

The NORP courts have consistently observed that contempt of court is not an offence against the personal dignity of judges but rather it is the name given to the kind of wrongful conduct which consists of interference with the administration of justice . The power to adjudicate and punish such conduct is considered an essential adjunct of the rule of law and an inherent aspect of the authority of judges to control the proceedings before them .

For the purposes of safeguarding the rights of the alleged contemner and ensuring fairness , certain procedural guarantees are afforded in the case of contempt in the face of the court , including the requirement that judges should only determine such proceedings arising out of events in their court where it is necessary to do so .

In NORP law , contempt of court is regulated by legislation in Title XVII of the Second Book of the Code of Organisation and Civil Procedure entitled “ Of the Respect Due to the Court ” . These rules also apply to courts of criminal jurisdiction , by virtue of Article CARDINAL of LAW .

According to the long - established practice of NORP courts , contempt committed in the face of the court is punishable by the judge or magistrate presiding over the proceedings in the course of which the contempt is committed . Contempt may take the form of disturbance in the courtroom by way , for example , of exclamations of approval or disapproval , improper behaviour such as indecent words or gestures or insulting remarks ( Article CARDINAL ) or the use of insulting or offensive expressions in written pleadings or during the hearing ( Article CARDINAL ) .

According to LAW , the following four types of sanction are available in respect of contempt committed in facie curiae : reprimand , expulsion from the court , a fine in terms of LAW and , lastly , arrest for a period not exceeding TIME in a place within the court building .

The only possible exception to this summary procedure is where contempt constitutes an offence under LAW ( The ORG v. PERSON , DATE ) . In such circumstances , it is prosecuted as a criminal offence . The presiding judge or magistrate can order the arrest of the offender , draw up a procès - verbal of the fact and remit the party arrested to the magistrates ' court ( LAW ) .

Furthermore , special provision is made for acts of contempt committed by lawyers . The normal sanctions are not applied but , in serious cases , the judge or magistrate may “ forthwith ” suspend the lawyer from practising for a period not exceeding DATE ( Article CARDINAL ) .

According to paragraph CARDINAL of ORG adopted in DATE by ORG on ORG and the Treatment of Offenders ) , lawyers should enjoy “ civil and penal immunity for relevant statements made in good faith in written or oral pleadings in their professional appearances before a court , tribunal or other legal or administrative authority ” .

In its Recommendation Rec(CARDINAL)CARDINAL , ORG recommends the governments of member States to take or reinforce , as the case may be , all measures they consider necessary with a view to implementing the freedom of exercise of the profession of lawyer . For instance , “ lawyers should not suffer or be threatened with any sanctions or pressure when acting in accordance with their professional standards ” . Lawyers should , however , “ respect the judiciary and carry out their duties towards the court in a manner consistent with domestic legal and other rules and professional standards ” ( Principles I § CARDINAL and III § CARDINAL ; see ORG v. GPE , no . CARDINAL , § § DATE , ECHR CARDINALII ) .


TORNARITIS and C.T. TOBACCO LTD v. CYPRUS

Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Loukis Loucaides;Sverre Erik Jebens

The first applicant , Mr PERSON , is a NORP national , and the second applicant , C. T. Tobacco Ltd , is a company incorporated under NORP law . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr P. Clerides , Attorney - General of GPE .

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

The first applicant lives in GPE . He is the director of the second applicant which is a limited liability company with its registered office in GPE .

On DATE the customs department applied to ORG of GPE for a search warrant on the basis of Articles CARDINAL , CARDINAL and CARDINAL of the Protocol on Mutual Administrative Assistance in Customs Matters between GPE and ORG ( hereinafter “ the LAW ” ) and sections CARDINAL and CARDINAL of LAW ( PERSON . CARDINAL , as amended ) . The application was made following a request made by ORG ( “ ORG ” ) concerning an investigation they were carrying out into the smuggling of cigarettes into ORG in violation of LAW . The customs department maintained that they had reasonable grounds to suspect that there were documents , in electronic or other form , on the applicants’ premises which , on the basis of reasonable suspicion , concerned such smuggling .

ORG of GPE issued CARDINAL search warrants on DATE ; CARDINAL for the private residence of the first applicant and CARDINAL for the applicant company ’s office . The wording of the latter warrant was as follows :

Towards the director of the customs department and the other customs officials of the customs department

Because it appears from the sworn statement of PERSON [ customs official ]

That there is reasonable cause to suspect

That on the premises of the company ORG ( former ORG ) , ... , there are documents in electronic or other form , computers and other objects which on the basis of reasonable suspicion are used in smuggling cigarettes to countries of ORG in violation of LAW . With a written request by ORG ... towards ORG authorities which is based on LAW , DATE , and CARDINAL of the Protocol on Mutual Administrative Assistance in Customs Matters between GPE and ORG ( CARDINAL ( III)/CARDINAL ) .

This warrant authorises you and calls you immediately with the appropriate help , to enter the mentioned premises of the mentioned person ... and with diligence to search for the mentioned objects and if these or part of these , are found during the search , to bring the objects which will be so found ... before myself or another Judge of ORG for them to be treated in accordance with the PERSON ... . ”

The search of the company ’s premises was carried out from DATE , TIME , until DATE , TIME The search warrant was executed by the head of the investigation unit of the customs department in the presence of CARDINAL customs officials , CARDINAL officials from the tax department , CARDINAL foreign officials authorised by ORG , the first applicant and the second director of the applicant company , CARDINAL shareholders and CARDINAL employees of the applicant company , the financial directors of another company and , finally , the applicants’ lawyers . It is not clear from the documents submitted before the ORG how many of the above persons actually participated in the search .

The customs officials seized CARDINAL documents and other material , including CARDINAL computers , a computer screen , keyboards and several floppy discs . During the search the first applicant requested the officers not to separate certain documents and also contested the seizure of certain material . The customs officials gave him copies of all the documents seized .

All the material seized was taken to the customs department ’s offices where the documents were copied . Some of these copies were communicated to ORG .

The customs officials also carried out a search of the first applicant ’s private residence but did not seize any material .

On DATE an ex parte application ( no . CARDINAL ) was filed by the customs department before ORG of GPE requesting the retention of the material seized until completion of the investigation and , in the case of filing of an action before the court , until the conclusion of the hearing of the action .

The court directed that the application be served on the applicants . The hearing of the application took place DATE and DATE .

The applicants objected to the retention of the material seized in so far as their relevance with the investigations had not been established . They further argued that the manner in which the search had been carried infringed their rights to private life , communication and correspondence under LAW , DATE and DATE of the LAW . In their application before the ORG the applicants claimed that they had also complained before ORG of a violation of their rights under LAW No . CARDINAL .

During the hearing the customs authorities claimed that at the time of the search they had seized all the documents and material they had considered relevant to the investigation but that it had been impossible during the search , in view of the amount of documents , to assess their exact relevance . The customs officials had only carried out an evaluation at first sight and , as a consequence , certain of the seized documents subsequently proved to be irrelevant whilst others needed to be examined in conjunction with other documents that were abroad .

In the meantime , by a letter dated DATE addressed to the director of the customs department , the applicants requested that the material seized during the search be returned to them . The Acting Attorney - General , who had received a copy of the above letter , replied by letter on DATE informing the applicants that all the material was kept at the offices of the customs department and would be presented before the court on the basis of section CARDINAL of LAW and that copies of certain of the documents had been given to the representatives of ORG .

Furthermore , in DATE , CARDINAL documents that were assessed as irrelevant were returned to the applicants .

On DATE ORG delivered its decision .

The judge firstly observed that both parties had accepted that search warrants were subject to the exclusive control of ORG and that they could be reviewed by way of appeal , where such a right was granted , or by way of the prerogative writ of certiorari . Consequently , in the present case , neither the issuing of the search warrant nor the basis for its issue nor its validity nor its legality was disputed . It was therefore binding .

The judge then found that he did not have jurisdiction to intervene at this stage and was therefore not competent to examine the lawfulness of the execution of the search warrant ; this could only be examined in the context of criminal proceedings or of any procedure before the court in which an attempt would be made to use the exhibits seized as evidence . In particular , the judge noted as follows :

“ I am of the opinion that the court at this pre - trial stage , of the completion essentially of the investigatory work which entailed the evaluation of the seized exhibits , can not intervene as not being competent to examine the lawfulness or unlawfulness of the execution of the search warrant and of the consequences of this . It is obvious for this reason that an application of this kind is made by ex parte application by the authorities ( police , customs etc ) and the decision is within the discretionary power of the court which , as I mentioned above , is exercised judicially and with the interests of all the parties involved as the criterion . The main concern of the court is to ascertain if the detention of the seized exhibits is necessary or , moreover , if there is a danger of their destruction , with the interests of all the parties involved as the criterion . This serves both the urgency and the secrecy which should surround the conditions of the issuing of such an order for the detention of exhibits . The Legislator gave the right to the person from whom the exhibits have been seized or even to the person who claims ownership of them , to apply for their return after the filing of a criminal case or even for them to be disposed of for the payment of costs or damages ( see Sect . CARDINAL ( CARDINAL ) , PERSON . CARDINAL and also the case ORG ... ) .

The unlawful execution of a search warrant ... will be the subject of criminal proceedings or of any procedure before the court in which an attempt will be made to use exhibits seized and detained as evidential material . The competency , in my opinion , belongs to the court which will try the case to decide if the search was conducted lawfully or unlawfully ( within the framework of a trial within a trial ) and at the same time there is an obligation on the present court to safeguard evidence which might be lost , destroyed , altered or falsified .

In cases such as the present one , where there is seizure and the detention is sought of a large number of documents as exhibits and there is a great difference in the evidence before the court as to the way in which the search was carried out , the matter must be left to the court which will hear the case to decide within the framework of an investigation within the trial if the evidence collected and detained is admissible .

There are clearly many particularities in the present case . The first peculiarity is the issuing and execution of a search warrant by virtue of the LAW and indeed by the customs department . The most important peculiarity , however , is the seizure of such a significant number of documents . And the time the search took is indicative . Some of the seized documents have already been returned ( CARDINAL ) , having been assessed as irrelevant .

The relevance of documents which concern financial transactions and commercial activities in connection with the offences under investigation alleged to have been committed by the respondents , PERSON and ORG is not an easy matter and no one can decide at first glance if a document is relevant or not . The work of evaluation is subtle , difficult and laborious , which requires time , knowledge and mainly comparison and evaluation with other documents abroad where customs officials are planning to send them in the near future , as was stated to the court . ”

Despite the above findings , the judge noted that he would go into an examination of the unlawful or lawful execution of the search warrant , without pre - empting any future decision of the court within the framework of the trial , where the unlawfulness or the lawfulness of the execution of the search warrant and the consequences of this for the acceptance or rejection of evidential material detained for this purpose had to be examined in the light of the facts at the time . He therefore proceeded to consider the points raised by the applicants’ lawyer in this respect . The judge held that the customs authorities had complied with the LAW when notifying ORG of the results of the search and , further , that both the officers of ORG and the tax department had been duly authorised by the director of the customs department to be present during the search . With regard to the applicants’ claim concerning their constitutional rights , the judge observed that questions concerning violations of rights such as the right to respect to one ’s private and family life , home and correspondence , were taken into account at the stage of issuing and not of the execution of the search warrant . In this connection he held that “ the issuing of a search warrant automatically resulted in the violation of the constitutional rights of the person against whom it was issued ” . Deviation from these rights was only justified when required by the public interest for the investigation of serious offences .

Moreover , the judge held that the damage to the service of awarding justice would be much greater at the present stage if the documents were returned to those entitled to them than if they were detained by the customs department for evaluation and safe - keeping until a new order of the court . In this respect he further noted that their return before their essential evaluation was not advisable as the court was not competent and also lacked the knowledge to evaluate all the documents in order to decide if they were relevant or not . He therefore ordered that the majority of the documents and other exhibits be detained by the customs department until a new court order and/or until the conclusion of any criminal proceedings . In connection with this , the judge also observed that the applicants had not argued before the court that the retention of the material seized affected their trade activities in any way .

Although he disagreed with the applicants’ arguments that the search ought not to have included financial activity and commercial transactions of other legal and natural persons who had links with the applicants ( associated persons ) , he found that it should have excluded the taking of documents which related to the applicants’ private life and any other activities , except financial activities and commercial transactions . He ordered that material that had been seized and concerned numbers of telephone communications of the applicants should be returned at once to the applicants and that the relevant copies taken by the customs officials should be destroyed , as the disclosure of such information was unlawful and violated the confidentiality of telephone communications . The judge referred to the PERSON on the Protection of the Confidentiality of Private Communication ( Surveillance of Communications ) in this respect ( Law CARDINAL/(I)/CARDINAL ) .

Finally , the judge did not exclude the possibility of the filing by the applicants of an application for the return of material seized at a future stage , in which the documents or exhibits would be specified and the reasons for which their return was claimed , either within the framework of section CARDINAL ( CARDINAL ) of LAW , that is , before the filing of any criminal proceedings or within the framework of section CARDINAL ( CARDINAL ) of that PERSON , that is , the commencement of the criminal proceedings .

Following the above decision , the authorities destroyed the copies made of the documents concerning the applicants’ telephone communications .

The applicants appealed against the decision of the court of first instance asking for it to be set aside and annulled ( appeals nos . DATE and DATE ) . They alleged that the decision was the outcome of a wrong exercise of the discretion granted to the court by section CARDINAL of LAW to order the retention of objects seized during the execution of a search warrant . They further complained that the search of the company ’s premises had been in violation of their constitutional rights .

During the course of the appeal proceedings all the remaining material seized was returned to the applicants .

On DATE ORG rejected the appeals on the ground that the decision of ORG was not appealable as the applicable law did not provide the right to appeal against decisions of this nature . The court , however , did go on to say the following :

“ .. in the case of section DATE ( CARDINAL ) of the PERSON , the grant by law of the right to appeal against decisions giving rise to the detention of confiscated objects is advisable , in as much as it concerns the independent decision of a court of first instance which affects fundamental rights of the individual , that of property and of the use of movable property ( Art . CARDINAL of the LAW ) , and possibly other rights too , such as the right to private life ( Art . CARDINAL of the LAW ) and of the secrecy of communication ( Art . CARDINAL of the LAW ) . ”

No criminal proceedings were initiated against the applicants .

The right to private life , communication and correspondence is safeguarded by Articles CARDINAL , DATE and DATE of the LAW . These provisions read as follows :

“ CARDINAL . Every person has the right to respect for his private and family life .

There shall be no interference with the exercise of this right except such as is in accordance with the law and is necessary only in the interests of the security of the LOC or the constitutional order or the public safety or the public order or the public health or the public morals or for the protection of the rights and liberties guaranteed by LAW to any person . ”

“ CARDINAL . Every person ’s dwelling house is inviolable .

There shall be no entry in any dwelling house or any search therein except when and as provided by law and on a judicial warrant duly reasoned or when the entry is made with the express consent of its occupant or for the purpose of rescuing the victims of any offence of violence or of any disaster . ”

“ CARDINAL . Every person has the right to respect for , and to the secrecy of , his correspondence and other communication if such other communication is made through means not prohibited by law . ”

There shall be no interference with the exercise of this right except in accordance with the law and only in cases of convicted and unconvicted prisoners and business correspondence and communication of bankrupts during the bankruptcy administration . ”

Under LAW ) of LAW ORG has exclusive jurisdiction to issue prerogative orders . This provision reads as follows :

The High Court shall have exclusive jurisdiction to issue orders in the nature of habeas corpus , mandamus , prohibition , quo warranto and certiorari . ”

The sections of LAW ( PERSON . CARDINAL , as amended ) concerning search and seizure provided as follows at the time of the incident :

“ ( CARDINAL ) Where a Judge is satisfied by a statement upon oath that there is reasonable ground for believing that there is in any place-

( a ) anything upon or in respect of which any offence has been or is suspected to have been committed ; or

( b ) anything which there is reasonable ground for believing will afford evidence as to the commission of any offence ; or

( c ) anything which there is reasonable ground for believing is intended to be used for the purpose of committing any offence ,

the Judge may at any time issue a warrant ( in this PERSON referred to as a “ search warrant ” , authorising the person therein named-

( i ) to search such place for any such thing and to seize and carry such thing before the ORG out of which the search warrant is issued or some other ORG to be dealt with according to law ;

( ii ) to apprehend and bring before a Judge the occupier of the house or place where the thing is found or any person in or about such house or place being in possession of such thing , if the Judge thinks fit so to direct in the warrant . ”

“ ( CARDINAL ) Every search warrant shall bear the signature of the Judge issuing the same , the date and time of issue as well as confirmation of the judge that he has been reasonably satisfied for the existence of the need for the issue of the warrant .

( CARDINAL ) Every such warrant shall normally be directed generally to all police officers ; but any Judge issuing such warrant may , if its immediate execution is necessary and no police officer is immediately available , direct it to any other person or persons and such person or persons shall execute the same and , when such warrant is directed to more officers or persons than one , it may be executed by all or by any CARDINAL or more of them .

( CARDINAL ) Every such warrant shall remain in force until it is executed or until it is cancelled by a Judge . ”

“ ( CARDINAL ) When , upon the execution of a search warrant , any object is seized and brought before any Judge , as provided in LAW , such object , subject to subsection ( CARDINAL ) of this section , may be detained by such person as the Judge may direct , reasonable care being always taken for its preservation until the conclusion of any criminal proceedings which may be initiated in respect thereof .

( CARDINAL ) Where any object seized under a search warrant and brought before a Judge is of a perishable or noxious nature , such object may be disposed of in such manner as the Judge may direct .

( CARDINAL ) If the Judge is of the opinion that anything seized under a search warrant is no longer required for the conduct of any criminal proceedings , he shall , unless he is authorised or required by this or any other PERSON to dispose it otherwise , direct -

( a ) that the object or any part thereof be restored to the person who appears to the Judge to be entitled thereto and , if such person is the accused in the relevant criminal proceedings , that it be restored either to him or to such other person as the accused may direct ; or

( b ) that , if such object belongs to the accused , such object or any part thereof be used to enable the payment of any costs or compensation directed to be paid by the accused . ”

The relevant sections of LAW ( PERSON . CARDINAL , as amended ) provide as follow :

“ Any person employed in the public service who wilfully neglects to perform any duty which he is bound by law to perform , provided that the discharge of such duty is not attended with great danger than a man of ordinary firmness and activity may be expected to encounter , is guilty of a misdemeanour . ”

“ Every person who wilfully disobeys any PERSON by doing any act which it forbids , or by omitting to do any act which it requires to be done , and which concerns the public or any part of the public , is guilty of a misdemeanour and is liable , unless it appears from the PERSON that it was the intention of the ORG to provide for some other penalty for such disobedience , to imprisonment for a term not exceeding DATE or to a fine not exceeding QUANTITY or to both . ”

“ Everyone who disobeys any order , warrant or command duly made , issued or given by any ORG , officer or person acting in any public capacity and duly authorised in that behalf is guilty of a misdemeanour and is liable , unless any other penalty or mode of proceedings is expressly prescribed in respect of such disobedience , to imprisonment for DATE . ”

Law CARDINAL(I)/CARDINAL on ORG ) was enacted in line with LAW . This PERSON prohibits and criminalises , with certain exceptions , the disclosure of the contents of every private communication , including telecommunication .

Law CARDINAL(III)/CARDINAL ratified LAW between GPE and ORG . The relevant provisions of the LAW read as follows , in so far as relevant :

“ At the request of the applicant authority , the requested authority shall , in accordance with legal or regulatory provisions applicable to the latter , take all necessary measures in order :

-to deliver any documents , or

-to notify any decisions ,

emanating from the applicant authority and falling within the scope of this LAW , to an addressee residing or established in the territory of the requested authority .

Requests for delivery of documents or notification of decisions shall be made in writing in an official language of the requested authority or in a language acceptable to that authority . ”

“ CARDINAL . Requests pursuant to this LAW shall be made in writing . They shall be accompanied by the documents necessary to enable compliance with the request ...

Requests pursuant to paragraph CARDINAL shall include the following information :

( a ) the applicant authority ;

( b ) the measure requested ;

( c ) the object of , and the reason for , the request ;

( d ) the legal or regulatory provisions and other legal elements involved ;

( e ) indications as exact and comprehensive as possible on the natural or legal persons who are the target of the investigations ;

( f ) a summary of the relevant facts and of the enquiries already carried out .

“ CARDINAL . In order to comply with a request for assistance , the requested authority shall proceed , within the limits of its competence and available resources , as though it were acting on its own account or at the request of other authorities of that same ORG , by supplying information already possessed , by carrying out appropriate enquiries or by arranging for them to be carried out . This provision shall also apply to any other authority to which the request has been addressed by the requested authority when the latter can not act on its own .

Requests for assistance shall be executed in accordance with the legal or regulatory provisions of the requested ORG .

Duly authorised officials of a ORG may , with the agreement of the other ORG and subject to the conditions laid down by the latter , be present to obtain in the offices of the requested authority or any other concerned authority in accordance with paragraph CARDINAL , information relating to activities that are or may be operations in breach of customs legislation which the applicant authority needs for the purposes of this LAW .

Duly authorised officials of ORG may , with the agreement of the other ORG and subject to the conditions laid down by the latter , be present at enquiries carried out in the latter ’s territory . !

“ CARDINAL . The requested authority shall communicated results of enquiries to the applicant authority in writing together with relevant documents , certified copies or other items .


Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria

The applicant , PERSON , is a NORP national who was born in DATE and lives in Uşak . She was represented before the ORG by Mr Atak , a lawyer practising in Uşak . ORG ( “ the Government ” ) were represented by their Agent .

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

The applicant was the owner of a building in Uşak . On an unspecified date , she agreed to sell this building to GPE and in exchange she received a certain amount of cash and CARDINAL bonds dated DATE and DATE respectively . She accordingly transferred the title deed to PERSON ’s name . Shortly after this transaction , PERSON sold the building to a certain ORG and the title was registered in the latter ’s name .

On DATE the applicant ’s lawyer filed an action before ORG against GPE and ORG , arguing that PERSON had deceived the applicant during the transaction , and thus the transfer of the title deed should be annulled and the title re - registered in her name . In this respect , she claimed that PERSON had committed fraud during the purchase of the land . In the meantime , the applicant also initiated criminal proceedings against PERSON in ORG , accusing him of fraud ( case no . CARDINAL/CARDINAL ) .

On DATE ORG held its first hearing and took statements from several witnesses . The court also took note of the fact that there were CARDINAL separate criminal proceedings pending against PERSON on charges of fraud ( namely case no . CARDINAL initiated by the applicant before ORG ; case no . CARDINAL/CARDINAL initiated by a certain PERSON before ORG and case no . CARDINAL before ORG ) . It therefore decided to request copies of these case files which were found to be relevant to the instant case .

Thereafter , the civil court awaited the outcome of these criminal proceedings , each time adjourning the hearings to a later date and without taking any decision on the merits of the case .

PERSON was subsequently acquitted of the charges against him in all CARDINAL cases and ORG received copies of the relevant case files and judgments on DATE , CARDINAL DATE and DATE respectively .

On DATE ORG dismissed the applicant ’s case . In taking this decision , the court based itself on the acquittal decision delivered by the criminal court in case no . CARDINAL . The court also held that there was nothing in the case file to suggest that the defendants had not acted in good faith during the transaction .

On DATE ORG , after holding a hearing on the merits of the case , upheld the judgment of DATE .

On DATE ORG further dismissed the applicant ’s request for rectification .