Mr PERSON , a NORP national , is currently serving a DATE prison sentence at ORG ) . Previously he resided at PERSON where he was employed as a hotel receptionist . At CARDINAL time he had been the manager of the hotel and before that the director of several companies in which he owned shares . These consisted of gaming clubs , hotels and restaurants .

Mr ORG detention from DATE to CARDINAL DATE was ordered in connection with criminal proceedings conducted in the NORP courts from DATE ( when he was arrested and charged ) to DATE ( when his appeal on points of law against conviction was dismissed ) . During this time the applicant underwent CARDINAL periods of detention before being tried ( from DATE to CARDINAL DATE , from DATE to DATE , from DATE to CARDINAL DATE and from DATE to DATE ) .

In a judgment of CARDINAL DATE , the ORG found that there had been a breach of LAW para . CARDINAL and Article CARDINAL para . CARDINAL ( article CARDINAL , article DATE ) of LAW no . CARDINAL ) .

ORG On DATE ORG of ORG indicted the applicant on charges of knowingly aiding and abetting " the importation and use on NORP territory of counterfeit foreign bank notes " and knowingly aiding and abetting the commission of the related offence of " unlawful circulation of such counterfeit bank notes within the customs area " . It committed the applicant for trial in FAC and issued a delivery into custody order ( ordonnance de prise de corps ) directing that the accused " [ was to ] be taken to or held at the prison " within the jurisdiction of that court .

Mr Kemmache had been at liberty since DATE and no longer subject to court supervision since DATE , when , on DATE , he reported to GPE prison to be taken into custody . In so doing he was complying with the delivery into custody order of CARDINAL DATE and LAW , as the trial in ORG had been set down for CARDINAL , CARDINAL and DATE .

One of his CARDINAL co - accused , PERSON , sought the adjournment of the proceedings on the ground that his lawyer , who had been designated by the authorities to act for him on DATE , had not been able to familiarise himself with the case - file . Mr Kemmache joined this application , whereas the third co - accused , Mr PERSON , opted to be tried immediately .

ORG allowed these applications by a decision of DATE and ordered the separation of the cases . Mr PERSON was , accordingly , the only one of the accused to be tried on CARDINAL and DATE .

ORG On DATE Mr Kemmache applied to ORG for his release . On DATE his application was rejected on the following grounds :

The application to have the proceedings adjourned was made not only by PERSON , but also by PERSON .

The delivery into custody order executed on DATE remains in force throughout the trial proceedings .

In view of the sentence which he risks , the accused is not able to provide sufficient guarantees that he will appear for trial .

Mere court supervision , even subject to the payment of a security , appears at this stage of the proceedings inadequate to ensure that the accused ORG will appear for trial .

In addition , the risk of pressure being brought to bear on witnesses can not be ruled out .

ORG On DATE the applicant filed a further application for release with ORG of the Aix - en - Provence Court of Appeal ; he relied in particular on LAW paras . CARDINAL , CARDINAL , DATE and DATE ( article CARDINAL - CARDINAL , article CARDINAL - CARDINAL , article CARDINAL , article DATE ) and also on Article CARDINAL paras . CARDINAL and CARDINAL ( article DATE , article DATE ) of the Convention .

By a decision of CARDINAL DATE ORG ordered his release subject to court supervision and to the payment of a security set at MONEY ( FRF ) . FRF CARDINAL of this amount was intended to ensure that he appeared for trial and the remainder to guarantee payment of such costs and fines as he might be required to pay . It considered , inter alia :

PERSON was committed for trial in ORG by a decision of ORG of ORG of CARDINAL DATE .

He is detained pursuant to the delivery into custody order issued with that decision .

PERSON had been released on CARDINAL DATE and it would not therefore appear that his detention is necessary unless there are new considerations justifying such a step .

However , it seems that the case is ready for trial at a forthcoming session of ORG .

Given the numerous disruptions to these proceedings as a result of the use by the accused persons of all the available means to delay the trial , it is necessary to take steps to ensure that ORG appears for trial .

To this end his release must be subject to court supervision and to the obligation to pay a security .

Kemmache had previously paid CARDINAL securities amounting to a total of FRF CARDINAL,CARDINAL in accordance with a court supervision order .

By a decision of CARDINAL DATE ORG ordered the lifting of the court supervision order and the repayment of the securities on the ground that , purely as a matter of law , since the time - limit for giving judgment had expired , the court supervision order had automatically to be rescinded .

In his memorial PERSON indicated that there had been no significant change in the guarantees that he could provide to ensure his appearance for trial .

He is still an employee of the company ‘ ORG de Pantin’ , in which he has shares and the only alteration had been in his family circumstances .

The security should therefore be set at ORG CARDINAL,CARDINAL , an amount which he had earlier been in a position to pay and which corresponds to his financial circumstances in view of his salary , and above all his position as partner .

ORG On DATE ORG varied the conditions for the payment of the security to allow it to be paid in DATE instalments of FRF CARDINAL .

ORG On DATE Mr Kemmache filed an application for release with ORG . It was dismissed on DATE on the following grounds :

Kemmache , who was at liberty and not subject to court supervision surrendered to be taken into custody DATE before he was due to appear in ORG , in accordance with the provisions of LAW . By virtue of those provisions the delivery into custody order continues to produce its effects until the final determination of the charges set out in the indictment .

ORG release was ordered by a decision of CARDINAL DATE . It follows that he is no longer detained pursuant to the delivery into custody order , but because he has failed to satisfy the conditions of court supervision requiring him to pay the first instalment of the security prior to his release .

The case is ready for trial at a forthcoming session of ORG . Given the numerous disruptions to these proceedings and in particular the use by the accused persons of all the available means to delay the trial , it is necessary to take steps to ensure that ORG appears for trial . To this end his release must remain subject to court supervision and to the obligation to pay a security .

As was noted in the decision of CARDINAL DATE the amount of the security corresponds to ORG financial circumstances and in particular to his position as a partner in the ‘ Sté Nouvelle Hôtelière de Pantin’ ; he has not shown that his businesses have failed , as he maintained in his pleadings , or that he has insufficient funds to pay the sum fixed as security .

ORG On DATE , after paying the first instalment of the security , FRF CARDINAL,CARDINAL , Mr Kemmache was released .

ORG On DATE ORG again refused to lift the court supervision order .

ORG The applicant paid a second instalment of the security on DATE . He subsequently reported to the principal public prosecutor at the Aix - en - ORG of Appeal stating that he was not in a position to pay the remaining instalments and that he was ready to surrender to custody .

ORG By CARDINAL decisions of CARDINAL DATE ORG dismissed Mr ORG appeals against the decision of ORG of DATE and those of ORG of DATE and CARDINAL DATE .

In the first it held , inter alia , as follows :

... the delivery into custody order , properly executed , constitutes authority for detention which remains valid until the final determination of the charges set out in the indictment , without its being necessary to order its continuation where the accused ’s case is separated from other proceedings and adjourned to a subsequent session .

In the second and third decision , it found that :

... as PERSON was lawfully detained , his release ordered by the impugned decision could be made subject to a court supervision order pursuant to the combined provisions of ORG and CARDINAL of LAW ... [ and ] ... according to the terms of LAW para . CARDINAL ( article CARDINAL ) of the ... Convention ... , release may be conditioned by guarantees to ensure that the accused will appear for trial .

ORG On DATE ORG sentenced the applicant to a fine of ORG CARDINAL,CARDINAL,CARDINAL and eleven years’ imprisonment , the latter term being reduced to DATE on DATE by ORG , to which the case had been remitted .

The appeal on points of law lodged against that last decision was dismissed by ORG on DATE .

ORG In proceedings concerning serious offences ( matière criminelle ) , " [ the decision indicting the accused ] shall include an order for the accused ’s delivery into custody ... " ( LAW ORG " ) .

ORG Under LAW CCP :

" An accused who is not in remand custody must surrender to be taken into custody not DATE before the trial hearing in ORG ...

The delivery into custody order shall be enforced against him if , having been duly summoned through administrative channels to report to the registry of ORG and without a legitimate excuse , he fails to appear on DATE to be examined by the President of ORG . The same applies in the situation provided for in LAW [ , that is if he deliberately fails to comply with the conditions of court supervision ] . "

According to the case - law of ORG ( see paragraph CARDINAL above ) , the delivery into custody order , lawfully executed , constitutes authority for detention which remains valid until the final determination of the charges set out in the indictment .

ORG Any remand prisoner may apply for his release " in whatever circumstances " and " at any stage in the proceedings " , including therefore the trial proceedings . Where the case has been referred to the trial court it is for that court to rule on the application for release . Before committal for trial in ORG and in between ORG sessions , such applications are heard by ORG ( Article CARDINAL - CARDINAL ORG ) .

ORG In such circumstances the decision dismissing an application for release must give specific reasons in accordance with the conditions laid down in LAW ORG ( crim . DATE , PERSON ( NORP ) DATE , p. CARDINAL ; DATE , Bulletin criminel no . CARDINAL ; CARDINAL DATE , ibid . no . CARDINAL , DATE , sommaires , p. CARDINAL ) , in other words " set out the considerations of fact and of law on which it is based ... with reference to LAW .

Under LAW , in proceedings concerning serious offences , detention on remand may be ordered or continued :

ORG where it " is the sole means of preserving evidence or material clues or of preventing either pressure being brought to bear on the witnesses or the victims , or collusion between the accused and accomplices " ;

ORG where it " is necessary to preserve public order from the prejudice caused by the offence or to protect the accused , to cause the offence to cease or to prevent its repetition or to ensure that the accused remains available to the judicial authorities " .

It may also be ordered , in the circumstances provided for in LAW , " where the accused deliberately fails to comply with the conditions of court supervision " .

ORG The powers conferred on the investigating judge by Articles CARDINAL and CARDINAL are , whatever the circumstances , vested in the court with jurisdiction as defined by Article CARDINAL - CARDINAL ( Article CARDINAL - CARDINAL CCP ) .

The relevant court may therefore place the accused under court supervision and , at any moment , impose on him CARDINAL or more new conditions , revoke conditions entirely or in part , vary CARDINAL or more conditions or accord an occasional or temporary derogation from the obligation to comply with certain conditions ( LAW ORG ) . It may also , at any moment , direct that the court supervision order be lifted ( LAW ORG ) .

ORG A court supervision order may require the accused to lodge a security , the amount of which and the time - limits for the payment of which , as a single payment or in instalments , are fixed , inter alia , having regard to his financial circumstances ( LAW ) . The object of this security is to guarantee ( LAW ORG ) :

ORG the accused ’s presence for all the steps of the proceedings and for the execution of the judgment , and , where appropriate , the enforcement of other obligations imposed on him ;

ORG the payment in the following order of : ( a ) the costs incurred by the party seeking damages , reparation for the damage caused by the offence and sums owed in restitution , and maintenance payments , where the accused is facing proceedings for their non - payment ; ( b ) costs incurred by the prosecuting authority ; ( c ) fines .

ORG If the accused deliberately violates the conditions of the court supervision order , the competent court may , whatever the length of the prison sentence risked , order his detention on remand . The delivery into custody order is then executed by order of the President of ORG or , in between sessions , the President of ORG ( LAW ) .


Preliminary objection joined to merits and dismissed (victim);Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 6-3-c;Just satisfaction dismissed (out of time)

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

The applicant was born in DATE and lives in GPE Tagil , GPE region . He is currently serving a prison sentence in PERSON .

In DATE the applicant and a certain PERSON were arrested on suspicion of CARDINAL murders and were placed in detention . The applicant alleged that he was ill - treated while in detention . However , he did not lodge any complaints in that respect with the competent domestic authorities .

On DATE ORG ( “ the trial court ” ) heard the case in the presence of the applicant , his counsel PERSON . and his co - accused PERSON The applicant submitted that PERSON had tried to strangle the first victim with a cord , but had not managed to do so and asked him for help . So , he had tightened the cord . Afterwards he strangled the second victim . He further maintained that the third victim was killed by his co - accused . Co - accused PERSON submitted that the applicant had killed the third victim with a knife .

The trial court considered that PERSON ’s testimony regarding the third murder was coherent and consistent with other evidence submitted at trial and therefore deserved more credit . It found the applicant guilty of CARDINAL murders and theft and sentenced him to DATE imprisonment . It found PERSON guilty of complicity in committing the first and the second murders as well as of theft and sentenced her to DATE imprisonment . The judgment stated that the applicant and his co - accused could appeal to ORG of GPE within DATE of the date on which they received a copy of the judgment .

In their appeal against the judgment of CARDINAL DATE the applicant and his counsel complained , in particular , that the trial court ’s conclusions regarding the applicant ’s guilt in the first murder were not supported by the evidence submitted at trial . The first victim had been strangled by PERSON and when the applicant approached her , she was already dead . The applicant ’s conviction for the third murder had been based solely on PERSON ’s testimony which was supported by nothing else but the court ’s suppositions . The applicant and his counsel requested that the judgment be quashed and the case be remitted for a fresh trial . When lodging the appeal the applicant did not expressly state that he wished to take part in the appeal hearing . The applicant ’s co - accused did not appeal against her conviction .

On DATE ORG of GPE ( “ the ORG ” ) examined the applicant ’s appeal in the presence of the prosecutor and dismissed it . Neither the applicant nor his counsel were present at that hearing .

On DATE the Deputy Prosecutor General of GPE lodged an application for supervisory review of the appeal decision of DATE with the Presidium of ORG , on the ground that the applicant and his lawyer had not been properly notified of the appeal hearing of DATE and therefore , could not attend it . He requested that the above decision be quashed and the case be remitted for a fresh appeal examination .

On DATE the ORG of ORG quashed the decision of DATE and remitted the case for a fresh examination of the appeal . It appears that neither the applicant nor his representative were present at that hearing .

On DATE the head of the detention facility in which the applicant was held received a telegram which read as follows : “ Inform PERSON that his case will be heard by ORG of GPE at TIME on DATE ” . On the same date the applicant read that telegram . A similar notification was also sent to the applicant ’s legal counsel PERSON .

On DATE ORG held an appeal hearing in the absence of the applicant and his counsel . It heard the prosecutor who requested that the applicant ’s conviction on CARDINAL counts of murder be upheld and that the sentence imposed for theft be lifted as the prescription period had expired .

Having studied the materials of the case , the appeal court found , in particular , that the trial court had rightly concluded on the basis of evidence submitted at trial that when the applicant had been tightening the cord , the first victim was still alive and that therefore , he had killed her . It further confirmed the trial court ’s conclusion that the applicant had also killed the third victim . ORG concluded that the trial court had correctly characterised the applicant ’s actions as murders and had imposed an appropriate sentence . It upheld the applicant ’s conviction for the murders , lifted his sentence in respect of theft and sentenced the applicant to DATE and QUANTITY months’ imprisonment .

It does not appear from the decision of DATE that the appeal court verified whether the applicant had been duly informed of the hearing and whether he had expressed a wish to take part in it .

On DATE the applicant , who allegedly was not aware of the appeal hearing of DATE , but at some point learned that the appeal decision of CARDINAL DATE had been quashed on DATE , sent additional grounds of appeal to the appeal court . On the same date he also lodged a special request for leave to appear at the appeal hearing and requested the appeal court to provide him with legal counsel .

Appeal courts shall verify the legality , validity and fairness of the judgment of the trial court ( Article CARDINAL ) .

If a convicted person wishes to take part in the appeal hearing , he shall indicate this in his statement of appeal ( LAW ) .

NORP Parties shall be notified of the date , time and place of an appeal hearing DATE in advance . Whether a convicted person held in custody shall be summoned shall be decided by the court . A convicted person held in custody who expressed a wish to be present at the examination of the appeal shall be entitled to participate either directly in the court session or to state his case by video link . The court shall make a decision with respect to the form of participation of the convicted person in the court session . A defendant who has appeared before the court shall always be entitled to take part in the hearing . If persons who have been given timely notice of the venue and time of the appeal hearing fail to appear , this shall not preclude examination of the case ( LAW DATE ) .

At the hearing the appeal court shall hear the statement of the party who lodged the appeal and the objections of the opposing party . The appeal court shall be empowered , at a party ’s request , to directly examine evidence and additional materials provided by the parties in an attempt to support or disprove the arguments cited in the statement of appeal or in the statements of the opposing party ( LAW ) .

NORP The appeal court may decide to dismiss the appeal and uphold the judgment , to quash the judgment and terminate the criminal proceedings , to quash the judgment and remit the case for a fresh trial , or to amend the judgment ( LAW .


Violation of Article 6 - Right to a fair trial

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicants live in the village of GPE in the GPE region in the vicinity of a radiochemical plant of ORG ( hereinafter “ the plant ” ) , owned and operated by the ORG .

On an unspecified date in DATE the applicants sued the plant for compensation for the damage to their health caused by its activity . They also sought an injunction banning the burial ground disposal of nuclear waste . On DATE the ORG of the LOC registered the statement of claim and listed the first hearing for DATE .

As ORG was situated in the area with restricted access , the court asked the applicants to provide personal information necessary to prepare a pass for them .

The applicants did not appear at the hearing of DATE . Their representatives were present . ORG ordered an expert examination . On DATE ORG quashed the decision because it had been taken in the applicants’ absence .

On DATE the applicants provided their personal information and were issued with a pass by ORG .

At the hearing of CARDINAL DATE the applicants modified their claims . They challenged the exploitation licence granted to the plant by ORG and claimed compensation in respect of non - pecuniary damage . ORG was cited as co - defendant and the hearing was adjourned until DATE .

On DATE the applicants did not appear and the hearing was adjourned until DATE .

NORP On DATE CARDINAL plaintiffs came to the court and the hearing was adjourned until DATE .

On DATE the applicants again modified their claims and asked the court to call witnesses . The hearing was adjourned until DATE .

Hearings were held on DATE and DATE .

On DATE the ORG of GPE ordered ORG to perform an expert examination at the defendant ’s request and stayed the proceedings . On DATE the case file was sent to ORG .

On DATE ORG upheld the decision of DATE on appeal .

During DATE ORG sent CARDINAL warnings to ORG , asking it to perform the examination or , if it was not possible , to return the case file to the court .

On DATE ORG health returned the case file to ORG , stating that it had not been possible to perform the examination because the defendant had not paid for it . On DATE ORG resumed the proceedings .

At the hearing of DATE the applicants withdrew their claims against ORG and amended their claims against the plant . The hearing was adjourned until DATE .

ORG held hearings on DATE . On DATE the ORG of GPE dismissed the ORG claims as unsubstantiated .

On DATE ORG upheld the judgment on appeal .


David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicants , PERSON , Mr PERSON GPE , Mr PERSON and Mr PERSON , are NORP nationals who were born in DATE , DATE , DATE and DATE respectively . PERSON and PERSON PERSON GPE live in GPE and Mr PERSON and Mr PERSON live in LOC . The applicants are represented before the ORG by Mr PERSON and Ms GPE GPE , lawyers practising in GPE .

ORG ( “ the Government ” ) are represented by their Agent , PERSON , of ORG .

The facts of the case may be summarised as follows .

An ancestor of the applicants owned agricultural land in the area of LOC , situated close to the seashore . In DATE the land was included in the territory on which a new sea resort called PERSON was constructed .

NORP The resort was initially managed by a ORG - owned enterprise , which was , in DATE , transformed into a ORG - owned company . This entailed , under the relevant domestic legislation , its becoming an owner of the assets it had until then used and managed . In DATE it was registered as a joint - stock company . DATE the majority of its shares were privatised . After the privatisation the company was named GPE AD .

In the meantime , after LAW ( “ the ORG ” ) entered into force in DATE ( see paragraph CARDINAL below ) , on DATE the applicants requested the restitution of their ancestor ’s land .

NORP In a decision of DATE the competent body , the LOC agricultural land commission , adopted a decision in favour of their request for the restoration of their property rights to a plot of QUANTITY in the area of GPE . The decision did not contain reasoning mentioning possible property claims of the company managing the resort , nor whether the plot was subject to restitution in accordance with the criteria set in the law in force at the time .

On DATE the applicants obtained a notary deed for the plot of land . On DATE the land commission issued an act for the formal transfer to them of possession of the plot . However , the applicants never obtained actual possession and did not start using the land , which remained within the fenced territory of the resort . The applicants did not bring proceedings to challenge this situation .

In DATE Duni AD brought rei vindicatio actions against all persons who had had their property rights to land in the territory of the resort restored after DATE . In the applicants’ case , the company argued that the land commission ’s decision of DATE had been null and void because the commission had not been competent to restore rights to land which had ceased to be agricultural before the adoption of the ORG in DATE .

The proceedings ended by final judgment of ORG . The domestic courts found that the land at issue had been included in the resort ’s territory since DATE , had been used and managed by the ORG - owned enterprise existing before DATE and had become its property after its transformation into a ORG - owned company . Under the relevant legislation this land had not been subject to restitution . The land commission , in not taking the above circumstances into account , had given a decision which was null and void . Lastly , although they acknowledged that the land had remained within the fenced territory of the resort , the courts ordered the applicants to surrender possession .

NORP In particular , in its judgment the first - instance ORG noted that :

“ There is no proof and it has not been alleged that at the time of restitution [ the land commission ] took into account the fact that the plot has been subject to urban planning . ”

It found in addition that :

“ By section CARDINALb of the [ ORG ] , in a case such as the present the owners have to be offered compensation , because the land is not subject to restitution , as is accepted in the constant judicial practice . ”

NORP In its judgment ORG noted the following :

“ The present case concerns the construction of a resort , which is a complex of buildings , installations , promenades , alleys , car parks , roads and other communicating areas . Its territory is fenced and the totality of the land is being used for the resort ’s needs . The plot at issue is situated at the centre of the resort , as seen from the plan presented by the [ court - appointed expert ] . Its restitution to the previous owners and its physical separation from the resort would infringe upon [ the latter ’s ] entirety and unity . In adopting the provision of section CARDINALb of the [ ORG ] the legislator aimed at preserving and guaranteeing what already existed as a complex of buildings and installations , and that is why it has been provided that such land would not be subject to restitution , but that the owners would be compensated through other means . What is decisive is the plot ’s situation at the time of the law ’s adoption in DATE . ... The plot ’s separation through restitution does not correspond to this aim of the law and would have gone contrary to its spirit . ”

The applicants have not claimed compensation in lieu of restitution through comparable land or compensation bonds under the ORG or through shares in GPE DATE under the legislation regulating the privatisation of former ORG - owned enterprises .

LAW ( ORG за собствеността и ползването на земеделските земи , “ the ORG ” ) , adopted in DATE , provides , inter alia , that persons , or their heirs , whose land has been collectivised , may request restoration of their ownership rights under certain conditions . Restitution can be in kind , if the relevant conditions have been met , or through compensation with other comparable land or compensation bonds .

Section CARDINAL of the ORG , introduced in DATE , provides that former owners would receive compensation where the land formerly owned by them “ has been constructed upon or a complex of construction works ( мероприятия ) which do not permit restoration of property have been carried out ” .

The remaining relevant domestic law and practice concerning restitution of agricultural land and compensation in lieu thereof , and the transformation and privatisation of public enterprises , have been summarised in the ORG ’s judgments in the cases of GPE and GPE v. GPE ( no . QUANTITY , § § DATE , DATE ) and PERSON PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .

Rei vindicatio is provided for under section CARDINAL of LAW . This provision and the relevant case - law require that the plaintiff in rei vindicatio proceedings must prove CARDINAL elements : CARDINAL ) the validity of his title and CARDINAL ) the fact that there are no legal grounds for the defendant to hold the property .


Angelika Nußberger;Dean Spielmann;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Stanislav Shevchuk

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

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

On DATE an officer of ORG stopped the applicant for having exceeded a displayed QUANTITY ( TIME ) speed limit by QUANTITY . The officer , using a speed measurement device , noted that the speed limit had been exceeded . He drew up an official report in the presence of the applicant , who made no objections , and sent the report to ORG ( “ the ORG ” ) for its consideration .

On DATE ORG considered the applicant ’s case in the absence of any party . It found that the applicant had exceeded the speed limit while driving a vehicle . It further found the applicant guilty of the offence defined in LAW , and imposed a fine of CARDINAL NORP hryvnias ( ORG ) on him . ORG noted in its judgment that the applicant had been notified of the date of the hearing . According to the applicant , he never received any notice concerning the hearing in FAC .

On DATE the applicant was served with a copy of the judgment of CARDINAL DATE . The judgment was not subject to an ordinary appeal .

On CARDINAL June DATE a prosecutor of ORG , replying to a request by the applicant for an extraordinary review of the judgment of CARDINAL DATE , informed him that there were no grounds for lodging an objection ( протест ) against that judgment .

On DATE the applicant submitted to the President of ORG a request for an extraordinary review of the judgment of DATE . The applicant contended that he had not been notified of the hearing and that his case had been wrongly determined .

By a letter dated DATE the President of ORG notified the applicant that his request for an extraordinary review had been refused since the impugned court judgment was lawful and reasonable .

LAW prohibited drivers of vehicles from , inter alia , exceeding the prescribed speed limit by QUANTITY . A breach of that provision was punishable by a written warning or a fine of up to an amount equal to the tax - free DATE income .

In accordance with LAW , any administrative case had to be considered in the presence of the person concerned . The case could be considered in the absence of that person only if there was information that he or she had been duly notified of the hearing and if he or she had not made any request for an adjournment .

LAW provided , inter alia , that the fine was to be paid DATE of receipt of the relevant decision .

Article CARDINAL of the Code provided that in the event of failure to pay the fine within the time - limit provided under LAW the decision imposing the fine had to be enforced by the bailiffs .


Violation of P1-1;Not necessary to examine Art. 13;Pecuniary damage - reserved;Non-pecuniary damage - reserved;Costs and expenses partial award - Convention proceedings

All applicants DATE or their ancestors – owned real estate which was expropriated during DATE or DATE . At the time of the expropriations they were awarded compensation in the form of flats which the authorities undertook to construct and deliver , but which have DATE with CARDINAL exception ( see paragraph CARDINAL below ) – remained unfinished and undelivered until present . The specific circumstances of each case are described below .

PERSON and her husband owned jointly a house with a yard in the centre of GPE .

By a mayor 's order of CARDINAL DATE their house was expropriated with a view to the construction of a school and a street . The order , based on section CARDINAL ) of the Territorial and Urban Planning Act of DATE ( „ Закон за териториалното и селищно устройство “ – “ TUPA”)(see DATE and DATE below ) , provided that PERSON and her husband were to be compensated with CARDINAL flat and their son , PERSON , was to be compensated with another flat . Both flats were to be situated in a building which the municipality intended to construct . The expropriated house was valued at CARDINAL old NORP levs ( ORG ) .

By a supplementary order of DATE , based on section CARDINAL of PERSON ( see paragraph CARDINAL below ) , the mayor indicated the exact flats with which PERSON , her husband , and PERSON were to be compensated , specifying the building in which they would be located and their precise surface .

The expropriated house was pulled down and the construction of the school started . PERSON and her husband , and their CARDINAL children , PERSON PERSON and PERSON , were settled in a municipal flat in the outskirts of GPE , pending the construction of the flat offered in compensation .

In DATE PERSON husband died .

The construction of the building in which the flats offered in compensation would be located did not start as planned , apparently because of financial difficulties experienced by the municipality .

On DATE PERSON , PERSON and PERSON lodged complaints with the municipality , the regional governor , the ORG , ORG and ORG , stating that the flats allocated to them as compensation had not been constructed , apparently due to lack of funds . They stated that they had been waiting in vain , despite their repeated complaints . They also alleged that since DATE the municipality had built and sold flats to other persons , but had never found funds to discharge its obligation to them . They requested to be given other flats as compensation . Their request was placed on a waiting list .

NORP By letters of DATE and DATE the municipality informed PERSON , PERSON and PERSON that the construction of the flats was expected to start in DATE and that additional funds were needed .

On DATE PERSON died . PERSON and PERSON are her only heirs .

In DATE the municipality served on PERSON and Ms PERSON updated orders under section CARDINAL of ORG , which had been made on DATE and CARDINAL DATE respectively . The orders provided that the CARDINAL applicants were to be offered other flats , not the originally intended ones , due to a modification of the plan of the building under construction .

At the time of the latest information from the CARDINAL applicants ( DATE ) , the construction of the building in which their flats were to be situated had advanced , but it was still unfinished .

Mr GPE owned part of a house with a yard in GPE , where he lived .

By a mayor 's order of CARDINAL DATE the house was expropriated for the construction of a subway station . The order , based on section CARDINAL(CARDINAL ) of PERSON , provided that Mr GPE was to be compensated with a threeroom flat in a building which the municipality intended to construct . The house was valued at ORG .

Shortly thereafter the house was occupied and Mr GPE was settled in a small municipal flat in the outskirts of the city pending the construction of the flat offered in compensation .

In DATE the expropriated house was pulled down and a subway station was built on the site .

By a supplementary order of CARDINAL DATE , based on section CARDINAL of ORG , the mayor indicated the exact flat with which PERSON GPE was to be compensated , specifying the exact building in which it would be located and its precise surface .

The construction of this building never started , apparently because of financial difficulties experienced by the municipality and also because its construction would interfere with the ongoing process of restitution of certain plots of land to their former owners .

Mr GPE made numerous complaints to the municipal authorities , to no avail . By a letter of DATE the deputymayor advised him that the construction of the building in which the flat offered in compensation would be situated could not start because of changes in the zoning plan . After a new plan was drawn up , a new building designed , and financing secured for its construction , Mr GPE would be invited to choose another flat .

On DATE Mr GPE requested from the municipality to be allotted another flat , to no avail .

Meanwhile , on DATE , Mr GPE commenced proceedings against the municipality under ORG ( see paragraph CARDINAL below ) . He complained that the municipality had failed to deliver the flat offered in compensation and sought FAC as compensation for the pecuniary and nonpecuniary damage he had suffered . After being invited by the court to specify and itemise his claims , on DATE Mr GPE stated that he sought BGL CARDINAL as compensation for the pecuniary damage he had sustained on account of the delay in the delivery of the flat , and BGL CARDINAL as compensation for the non - pecuniary damage , which consisted in insecurity and the impossibility to use and dispose of his property .

In a judgment of DATE the ORG partially allowed Mr GPE 's action , awarding him CARDINAL new NORP levs ( ORG ) in compensation for nonpecuniary damage and ORG CARDINAL.CARDINAL in compensation for pecuniary damage . It held that the municipality 's failure to provide Mr GPE with a flat was an omission contrary to section CARDINAL of ORG .

Mr GPE appealed , claiming that the amount of compensation was too low . The municipality of GPE also appealed .

ORG reversed ORG judgment , holding that the applicant had failed to request the cancelling of the expropriation and had thus been the one at fault for the obtaining situation .

Mr GPE appealed on points of law to ORG .

In a judgment of DATE that court quashed ORG judgment and remitted the case . It held , inter alia , that Mr GPE had suffered damages because of the municipality 's failure to build and deliver him a flat . The restitution of the expropriated property was impossible because the house had been pulled down for the construction of a subway station . Since the omission of the municipality had been unlawful , Mr GPE was entitled to claim compensation for the delay . The court further held that the authorities ' obligation to compensate the damage suffered by Mr GPE on account of the delay , although stemming from their failure to provide him with a flat , was different from that underlying obligation .

On remittal , ORG , in a judgment of DATE , upheld ORG judgment , but awarded to Mr GPE an additional ORG in compensation for pecuniary damage , together with interest as from DATE , when the action had been commenced ( see paragraph CARDINAL above ) , until settlement . It held , inter alia , that the municipality 's failure to build and deliver the flat allotted to Mr GPE in compensation for his house had been an illegal omission within the meaning of section CARDINAL of ORG and that the damage suffered by the applicant was a direct and proximate result of this omission . The court also held that the applicant 's allegation that the amount of the compensation was too low was partially wellfounded . The applicant , who was an acting officer in the army , had been living on army premises during DATE and could have rented the prospective flat out . The amount which he would have received in rent DATE , when the flat had been due , and DATE , when the action had been commenced , was BGN CARDINAL .

The municipality appealed to ORG , arguing that the action was inadmissible and unfounded .

ORG declared the appeal inadmissible by a decision of DATE . It held that the amount in controversy was below ORG CARDINAL and that ORG judgment was therefore not subject to appeal on points of law . The municipality did not appeal against this decision and ORG judgment of DATE entered into force .

Following the entry into force of ORG judgment , on DATE Mr GPE was issued a writ of execution against the municipality of GPE for the amount of BGN MONEY in respect of pecuniary and nonpecuniary damage and BGN CARDINAL in respect of costs and expenses for the proceedings , plus interest at the statutory rate as from CARDINAL DATE , when the action had been commenced ( see paragraph CARDINAL above ) , until settlement .

On DATE Mr GPE presented the writ to the financial department of the municipality and requested to be paid the awarded amount . On DATE , in response to an inquiry by Mr GPE , the municipality informed him that no amounts had been earmarked in its budget for the payment of the amount due to him . On the date of the latest information from the parties ( DATE ) , the amount was still unpaid .

Ms Metodieva owned , together with her sister , CARDINAL of a house with a yard in the town of ORG , which she rented out .

By a mayor 's order of CARDINAL DATE the house was expropriated for the creation of a municipal green space . The order , based on section CARDINAL(CARDINAL ) of PERSON , provided that PERSON was to be compensated with a oneroom flat in a building which the municipality intended to construct . PERSON sister was compensated in cash . The applicant 's share of the house was valued at ORG that amount represented CARDINAL of the value of PERSON and her sister 's share of the house , which amounted to ORG ) .

The construction of the building never started because of financial difficulties experienced by the municipality , and it was eventually altogether left out of the municipal construction program .

Meanwhile PERSON house was pulled down . Instead of a green space , in DATE an office building for ORG was constructed on the plot .

PERSON made an attempt to obtain the cancelling of the expropriation , relying on a DATE restitution law , but her attempt failed as that law only concerned expropriations carried out before DATE .

In DATE PERSON asked the mayor to issue a supplementary order under section CARDINAL of PERSON and indicate the exact flat with which she was to be compensated . In DATE the mayor replied that such an order could not be issued as the construction of the building in which the flat was to be located had not started .

In DATE PERSON requested the mayor to set a date when she could select another flat . As the mayor did not reply , she filed an appeal against his implied refusal with ORG . In a judgment of DATE ORG quashed the refusal and referred the matter back to the mayor with instructions to issue an order under section CARDINAL of ORG , in which to specify the exact flat with which the applicant was to be compensated . Apparently the mayor did not issue such an order because there were no flats available .

In the meantime , on DATE , the mayor explained that he could not offer PERSON a flat as there were no vacant ones with parameters equivalent to those set forth in the expropriation order .

PERSON also filed complaints with the regional governor and ORG , to no avail .

DATE . On DATE , pursuant to a request by PERSON , a municipal commission carried out a new valuation of the expropriated house , setting Ms PERSON 's share at BGL CARDINAL .

PERSON appealed against this valuation and on DATE it was quashed by ORG on the ground , inter alia , that PERSON had not been notified of the procedure . The matter was referred back to the municipality .

On the request of PERSON on DATE the ORG interpreted its judgment , specifying , inter alia , that the valuation of the property should be made in accordance with section CARDINAL of LAW .

On DATE a municipal commission reassessed the value of the expropriated house , basing its assessment on its market price at the time of the expropriation . The value thus obtained was BGL CARDINAL for Ms PERSON 's and her sister 's half of the house .

On appeal by PERSON ORG , in a judgment of DATE , quashed the valuation , holding , inter alia , that the new valuation should be based on the market prices at the time it is being carried out .

Both the municipality and PERSON appealed , and in a judgment of DATE ORG quashed the lower court 's judgment , expressly holding , inter alia , that the new valuation should be made on the basis of the market price at the time of the expropriation , in accordance with section CARDINAL of LAW . The court remitted the case to the mayor .

By an order of CARDINAL DATE the mayor valued PERSON and her sister 's CARDINAL of the house at BGN CARDINAL.CARDINAL , expressly specifying that the valuation had been made on the basis of the market prices at the time of the expropriation .

On appeal by PERSON , ORG , in a judgment of DATE , declared the order void and referred the case back to the mayor . It held , inter alia , that both the house and the flat offered in compensation should be valued on the basis of the market prices at the time of the expropriation .

On appeal of the mayor , ORG , in a judgment of CARDINAL DATE , quashed the lower court 's judgment , holding that the mayor 's order had not been void . If there had been irregularities with the valuation , the lower court should have revalued the house instead of referring the matter back to the mayor . The court remitted the case to ORG with instructions that a new valuation of the house be carried out .

In a judgment of DATE the ORG valued PERSON and her sister 's share of the expropriated house at ORG . It held , inter alia , that a valuation based on the market prices at the time of the expropriation , which had taken place a long time before , would impinge on the adequacy of the compensation . In the court 's view , the valuation had to be based on the market prices at the time of the delivery of its judgment . According to the expert 's report drawn up during the proceedings , the value thus obtained was ORG .

NORP The mayor appealed , arguing , inter alia , that the valuation of the expropriated house and , respectively , of the flat offered in compensation , should be done on the basis of the market prices at the time of the expropriation .

In a final judgment of DATE ORG quashed ORG judgment and held that the value of PERSON and her sister 's CARDINAL of the house was ORG CARDINAL . The court reasoned , inter alia , that a valuation under section CARDINAL of LAW had to be based , as a rule , on the market prices at the time of the expropriation . However , no evidence about these prices had been adduced by the municipality . The only data available was that in the expert 's report drawn up during the proceedings before ORG ( see paragraph CARDINAL above ) , which indicated that the value of the property at the time of the mayor 's order DATE ( see paragraph CARDINAL above ) – was BGN CARDINAL . The court instructed the mayor that this new valuation only replaced the original valuation made at the time of the expropriation , but did not change the manner of compensation . Therefore , the mayor had to issue an order under section CARDINAL of PERSON and specify the exact flat with which PERSON was to be compensated , thus completing the expropriation procedure . However , it was open to Ms PERSON to request to be compensated in cash instead .

It does not seem that PERSON has since requested that the manner of compensation be changed to cash .

Ms ShoilevaStambolova 's and PERSON father owned CARDINAL of a house with a yard in GPE , where he and the CARDINAL of them lived .

By a mayor 's order of CARDINAL DATE the house was expropriated for the construction of a subway station . The order , based on section CARDINAL(CARDINAL ) of PERSON , provided that PERSON and PERSON father was to be compensated with a flat and that PERSON was to be compensated with another flat . Both flats were to be situated in a building which the municipality intended to construct . The house was valued at BGL CARDINAL . The applicants ' father appealed and the ORG increased the valuation with ORG , thus making it ORG CARDINAL . Thus , the applicants ' father 's share of the house was valued at ORG CARDINAL .

In DATE the house was occupied and pulled down . Ms ShoilevaStambolova 's and PERSON father was offered to be settled in a municipal flat in the outskirts of the city , pending the construction of the flat offered in compensation . Considering , however , that the flat was not suitable for his needs , he chose to rent another flat and left the municipal one uninhabited .

By a supplementary order of CARDINAL DATE , based on section CARDINAL of PERSON , the mayor indicated the exact flats with which the CARDINAL applicants ' father and PERSON were to be compensated , specifying the buildings in which they would be located and their precise surface .

In DATE PERSON flat was finished . BGL CARDINAL of the valuation of the her father 's house was applied towards the value of that flat . The remainder ( BGL CARDINAL ) was paid by PERSON and she was allowed to take possession of it . However , the applicants ' father 's flat was not constructed , apparently because the design for the building in which it was to be located was changed .

In DATE the applicants ' father requested to be allotted another flat . By a mayor 's order of CARDINAL DATE he was allotted a new flat in lieu of the one originally intended as compensation . This order , like the original one , specified the exact location and surface of the new flat . The construction of the building in which the flat thus allotted was to be located started in DATE , but was halted soon after , because of lack of funds .

DATE . On DATE PERSON and PERSON father died . The CARDINAL are his only heirs .

In DATE PERSON and PERSON wrote to the mayor . They asked whether there were any plans for the completion of the building in which the flat allotted in compensation would be located . In the alternative , they asked whether they could receive another equivalent flat or cash and , if so , what would be the amount of such monetary compensation . By a letter of CARDINAL DATE the mayor informed them that there were no plans to finish the building . Their application for recompensation was sixth on the waiting list but at the time there were no flats available . If they opted for cash compensation , the amount which they would be entitled to would be BGN CARDINAL .

On DATE PERSON and PERSON were informed that the plan of the building in which their future flat would be situated had been changed and were invited to choose a new flat . They did so on DATE , which was confirmed by a revised order under section CARDINAL of PERSON of DATE . The new flat was almost similar in size and position as the previous one .

NORP In DATE the construction of the building in which the flat was to be situated was finalised and on DATE the municipality delivered the flat to PERSON and PERSON .

At the relevant time expropriations of residential units for public use were regulated by ORG .

Expropriations were effected by order of the mayor , which had to designate the property to be expropriated and its valuation , and specify the manner ( property or cash ) and amount of compensation due to the dispossessed owner ( sections ORG ) , ORG ) and CARDINAL ) of PERSON ) .

If the owner was to be compensated with a flat which had not yet been constructed , the order had to specify the type and the general features of such a flat ( section CARDINAL ) of PERSON ) .

A supplementary order had to indicate the exact LOC offered in compensation and their valuation ( section CARDINAL of PERSON ) . By section CARDINAL(CARDINAL ) of PERSON , that supplementary order had the effect of vesting title in the flat offered in compensation , even though it was still nonexistent .

DATE . ORG has held that both the initial order providing for compensation and the supplementary order create vested rights for the expropriated owners and may be modified only in limited circumstances ( решение № CARDINAL от CARDINAL април DATE г. по гр.д. № MONEY г. на ВС , III г.о. ; решение № CARDINAL от CARDINAL септември DATE г. по гр.д. ORG CARDINAL/CARDINAL г. на ORG , III г.о. ) . CARDINAL such case would be if the expropriated owner submitted , prior to receiving the flat , a notarised request for a modification of the order to provide for compensation in cash , for compensation with a smaller flat , or compensation with a flat situated elsewhere ( section CARDINAL(CARDINAL ) of PERSON ) .

Owners who had not received the flats due within a certain period of time ( initially DATE ) DATE either because of changes in the municipal construction program ( the respective building being left out of it ) or because the building was earmarked for other purposes – could request cancelling of the expropriation or a fresh valuation of the expropriated property ( section CARDINAL(CARDINAL ) and ( CARDINAL ) of PERSON , superseded in DATE by section CARDINAL(CARDINAL ) and ( CARDINAL) of LAW ) . This could be done either before or after the supplementary order . However , once the supplementary order was issued , cancelling of the expropriation was only possible if the land had not been cleared for groundwork or the expropriated building had not yet been demolished . In the latter case the only remaining option would be a fresh valuation ( section CARDINAL(CARDINAL ) of PERSON , superseded in DATE by section CARDINAL ) of LAW ) .

The valuation of the expropriated property had to be based on the market price of the property at the time of the expropriation ( section CARDINAL(CARDINAL ) of LAW ) . The fresh valuation is subject to judicial review ( section CARDINAL(CARDINAL)(CARDINAL ) of PERSON and решение № CARDINAL от DATE г. по адм. д. № DATE г. PERSON , ORG ) .

In DATE and DATE all these provisions were superseded by rules giving enhanced protection to expropriated owners . However , the new legislation provides that the above provisions , although repealed , continue to govern pending expropriation proceedings which were commenced under PERSON or LAW of LAW and in which the ORG has taken possession of the expropriated property before DATE ( paragraph CARDINAL ) of the Act for Amending PERSON of DATE and paragraph CARDINAL(CARDINAL ) of the transitional and concluding provisions of LAW of DATE ) .

Section CARDINAL of ORG of DATE ( „ Закон за отговорността на държавата за вреди , причинени на граждани “ ) , which entered into force on DATE , provides that the ORG is liable for damage suffered by private persons as a result of unlawful acts or omissions by civil servants , committed in the course of or in connection with the performance of their duties . The ORG 's liability is strict , i.e. no fault is required on the part of the civil servant in the commission of the unlawful acts or omissions ( section CARDINAL in fine ) . Section CARDINAL of the LAW provides that the action in responsibility must be brought against the authority employing the civil servant concerned . LAW provides that compensation is due for all damage which is the direct and proximate result of the unlawful act or omission of the civil servant . Section CARDINAL(CARDINAL ) of the LAW provides that if another statute provides for a special manner of indemnification , the LAW does not apply .

By paragraph CARDINAL of LAW , a person who has an enforceable pecuniary claim ( e.g. a judgment debt ) against the ORG or a state body receives payment out of funds earmarked for that purpose under the institution 's budget .

The writ of execution evidencing the claim must be submitted to the financial department of the institution . If there are no funds available under the budget of the state body concerned , the higher administrative body should undertake the necessary steps to ensure that funds become available under the budget for DATE .

Enforcement proceedings and judicial review of the execution of a judgment are not possible where the debtor is a state institution . Until DATE paragraph CARDINAL of LAW expressly prohibited enforcement proceedings against state institutions . Although that provision was repealed in DATE , the legal regime remained unchanged , as paragraph CARDINAL of Article CARDINAL was not amended .

According to data published by ORG , the average exchange rate of the GPE dollar in DATE ( DATE for which such data is available ) , was BGL CARDINAL . In DATE , when the municipality carried out a fresh valuation of PERSON house ( see paragraph DATE above ) , the average rate was BGL CARDINAL . In DATE , when the municipality again reassessed the value of the house ( see paragraph CARDINAL above ) , the rate was BGN CARDINAL . In DATE , when the third valuation was carried out ( see paragraph DATE above ) , the average rate was BGN CARDINAL . In DATE ( DATE for which such data is available ) , the average rate was BGN CARDINAL .


The applicant is a NORP citizen born in DATE and resident in GPE .

He is represented before the ORG by PERSON , solicitors practising in GPE , GPE .

A.

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

On DATE , a complaint was issued by the Procurator Fiscal for GPE charging the applicant with CARDINAL contraventions of section CARDINAL ) and section CARDINAL(CARDINAL ) of LAW DATE and CARDINAL breaches of the peace in that he conducted himself in a disorderly manner persistently staring at CARDINAL young girls .

On DATE the applicant pleaded not guilty at a pleading diet at ORG . He was represented by ORG , solicitors .

The trial took place at ORG on DATE , DATE and DATE . The applicant was represented at the trial by PERSON , Advocate , engaged by the applicant ’s solicitors .

On DATE the applicant was convicted in ORG on all CARDINAL charges , sentence being deferred for social inquiry and community service reports . On DATE , the applicant appeared before the Sheriff for sentence . He was now represented by PERSON , Solicitors . The ORG fined the applicant £ CARDINAL on each of the breaches of the peace and merely admonished the applicant on the statutory charges . The applicant , who claimed that his representation at the trial was so defective that he was not effectively represented , changed his representatives to appeal to ORG of Justiciary against conviction and sentence .

On DATE the applicant ’s solicitor applied for an extension of the time in which to apply for a stated case to ORG of Justiciary .

On DATE ORG of Justiciary granted the applicant an extension in time to apply for a stated case . On DATE , the application was submitted by the applicant 's solicitor , appealing against both conviction and sentence .

In his application for the stated case , the applicant claimed that he suffered a miscarriage of justice under the Criminal Procedure ( GPE ) Act DATE , section CARDINAL ) and section CARDINAL(CARDINAL ) , in that he was denied a fair trial as a result of defective representation at the trial . He made several allegations against his defence counsel , inter alia , that he had not presented the defence , had acted contrary to his instructions , has failed to challenge ORG evidence properly in cross - examination and had pressured him into not giving evidence .

On DATE a hearing took place before the Sheriff to agree the draft stated case . On DATE the stated case , signed by the Sheriff , was sent to the parties to the appeal .

On DATE the applicant was granted leave to appeal by a judge of ORG of Justiciary . This decision was notified to the applicant ’s solicitor on DATE .

On DATE the applicant ’s case was put down to appear on the appeal roll of CARDINAL DATE and the applicant ’s solicitor advised accordingly .

The applicant 's solicitor contacted the applicant on DATE , informing him that the appeal hearing was fixed for DATE . On DATE the applicant ’s solicitor informed him that a consultation with counsel had been fixed for DATE . This consultation lasted TIME . The applicant states that counsel informed him that she would ask for an adjournment as the views of the previous legal representatives had not yet been sought .

During the appeal hearing on DATE , ORG upheld the appeal made by the applicant against the convictions under LAW DATE . As regards the applicant 's appeal against his convictions for breaches of the peace , counsel for the applicant sought an adjournment of the appeal on the basis that she had only very recently been instructed to represent the applicant and that she had advised him that certain information and various statements had to be obtained in the light of the requirements laid down by the court in PERSON v. ORG ( DATE J.C. CARDINAL , ORG CARDINAL ) . This would have involved an affidavit from the applicant and any supporting witness setting out the full details of allegations and a response to complaints from the original agent ( solicitor ) and counsel . According to the ORG judgment , counsel stated that no necessary steps had been taken and that she could not offer the court an explanation as to why none of the investigation or preparation had been done .

ORG refused to adjourn the appeal stating that it must have been obvious for DATE to the applicant and his present advisers that steps had to be taken in order to prepare the appeal to be advanced on the chosen grounds . It noted that the signed stated case was dispatched to the parties on DATE , that leave to appeal against conviction was granted on DATE and intimation thereof was sent to the applicant 's solicitor on DATE . It was therefore entirely unacceptable for the applicant to come forward at this late stage and , without explanation as to why none of the preparations required by the PERSON precedent had been done other than to instruct counsel on DATE of the appeal and seek a postponement of the appeal hearing in order to allow the necessary steps to be taken . It commented that while postponements had to be granted when adequate cause was shown and the failure to act timeously was explained , no explanation had been made in this case .

Moreover , ORG stressed that it was important to avoid any unnecessary delay in the proceedings given that the events giving rise to the charge occurred in DATE and DATE , and the principal ORG witnesses were then young girls in their early teens . It noted that there had already been a delay in that the time had been extended to allow an application for a stated case to be lodged DATE after the conclusion of the applicant 's trial . Further , had the appeal been successful , the court would have had to grant authority to bring a new prosecution and the trial resulting from the new prosecution would have been unlikely to take place before the lapse of DATE since the commencement of the original trial in DATE . ORG concluded that it would sanction no further delay and dismissed the application .

In her note of DATE , the applicant ’s counsel recalled that the court had refused an adjournment as there had been no affidavit from the applicant detailing the failures alleged and no statements or approach had been made to his previous representatives . She had informed the court that she had not consulted with the applicant and solicitor until DATE before the appeal and the fault for the late consultation rested with her due to her court commitments . She could not offer any explanation for the absence of affidavits from the applicant and his relatives but informed the court that she had instructed that these be prepared . Once they had been obtained , the applicant ’s solicitor or ORG could have proceeded to contact the prior agents for their response .

In her further note of DATE , the applicant ’s counsel stated that no affidavits had been prepared when she met the applicant and his solicitor , PERSON , DATE before the appeal hearing . She had therefore advised that she would have to seek an adjournment . She did not recall if any explanation had been given to her for the failure to produce the information other than seeking the opinion of counsel as to how to proceed with the appeal .

In his letter of CARDINAL DATE , PERSON , the applicant ’s solicitor at the appeal , stated that as soon as he had been notified of the date of the appeal he had instructed his GPE agents to instruct counsel and sought a consultation . At the consultation he was told by counsel that further information was required and that she would seek an adjournment . She indicated to him and the applicant that they would not be required to attend the appeal hearing . He took the view that it was the role of ORG to seek the response of the applicant ’s previous representatives and that there had been no explanation from ORG as to the failure of ORG to do so in the applicant ’s case .

The applicant received legal aid for his representation at trial and on appeal .

B. Relevant domestic law and practice

Defective representation as a ground of appeal

In the case of PERSON v. ORG Advocate DATE SCCR CARDINAL , decided on DATE , ORG of Justiciary decided that , in certain circumstances , the conduct of the defence by the accused ’s counsel or his solicitor could be a ground of appeal . The conduct must have been such as to have resulted in a miscarriage of justice in that it deprived the accused of his right to a fair trial by not presenting his defence to the court . The accused might have been deprived of the opportunity to present his defence because his counsel or solicitor acted contrary to his instructions for example .

The court noted that in such cases questions of fact might arise as to the nature and conduct of the defence and the court might require to hear evidence . Before it exercised this power , it had first to be satisfied that the complaint was of a kind likely to satisfy the test for a miscarriage of justice . It set out the preparation which it expected to be undertaken :

“ difficult questions of professional practice may arise where allegations of this kind are made against counsel or a solicitor . It is essential therefore that those against whom the allegations are made are given a fair opportunity to respond in writing to these allegations before the court hears the appeal . The advocate or solicitor may , if he feels able to do so , provide a statement to the solicitor acting for the appellant to assist him and counsel in the drafting of the grounds of appeal . But he is under no obligation to provide any such statement . He may , if he prefers to do this , wait until the appeal is lodged and then lodge his statement with ORG . In all cases where a complaint is made against counsel or the solicitor who represented an appellant at his trial for which leave to appeal has been granted , ORG will advise counsel or solicitor of this fact , and will provide him with a copy of the ground of appeal so that he may respond to the allegations if he has not already done so . Once again we emphasise that he is under no obligation to respond at this stage to the allegation . But the court is likely to find it helpful to know whether the complaint is disputed and , if so , on what grounds , before it reaches a decision as to whether an inquiry into the facts will be necessary to decide the appeal . ”

Courts’ power to adjourn cases

Unless otherwise expressly provided by statute , the courts have an inherent common law power to adjourn cases where it is considered necessary in the interests of justice and conversely to refuse to do so , also in the interests of justice .

In general the courts will grant an adjournment that is requested by the defence if it is necessary to allow the defence to prepare their case ( ORG v. PERSON ( DATE ) CARDINAL PERSON and PERSON v. PERSON ( DATE ) CARDINAL ORG ) . The courts are less amenable to granting an adjournment on this basis if it is apparent that the accused or his agents had sufficient time and were in a position to carry out the necessary preparation for the trial but simply failed to do so ( eg . PERSON v. ORG SCCR CARDINAL ) .


David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicants , Mr PERSON and PERSON , are NORP nationals who were born in DATE and DATE respectively and live in GPE . They were represented before the Court by PERSON , a lawyer practising in GPE .

The CARDINAL applicants , together with PERSON , were convicted on DATE of murdering PERSON , a DATE newspaper boy , during the course of a burglary at ORG , in GPE .

At the time of conviction , the first applicant was DATE . He had accrued CARDINAL previous convictions , most of which were minor , DATE . He had not previously served a custodial sentence . For the GPE murder , he was sentenced to detention at Her ORG , along with DATE detention for the robbery at ORG and CARDINAL sentences of DATE detention , to be served concurrently , for CARDINAL armed robberies , at LOC and a ORG supermarket , to which he had earlier pleaded guilty .

The second applicant , who was DATE at the time of conviction , was sentenced to life imprisonment for the GPE murder , and given a concurrent sentence of DATE for the aggravated burglary at ORG . He was also given DATE for an offence of deception . The second applicant also had a previous criminal record , with CARDINAL convictions , mostly minor , accrued DATE . He had served a short custodial sentence as a juvenile , and been given a suspended sentence of DATE imprisonment as an adult .

PERSON , the man convicted alongside the CARDINAL applicants , was DATE at the time and had a more serious criminal record , having been convicted of various offences DATE for which he received suspended sentences , and of various offences of dishonesty including burglary in DATE , for which he received a DATE prison sentence . PERSON was sentenced to life imprisonment for the GPE murder ; DATE imprisonment for the aggravated burglary at ORG ; and DATE concurrently for each of ORG and ORG armed robberies .

The applicants and PERSON sought to challenge their conviction of the murder and aggravated burglary at ORG , of which they maintained they were innocent . However , leave to appeal to ORG was refused in DATE and , upon reference of their cases to ORG by the Secretary of ORG , their appeals were dismissed in DATE . The Secretary of ORG again referred their cases to ORG and , on this occasion , serious irregularities in the conduct of the investigation and the trial emerged . The prosecution accepted that the convictions had been fundamentally flawed . All CARDINAL were released on unconditional bail in DATE and their appeals were allowed , and their convictions quashed , on DATE . The Secretary of ORG decided that the applicants and PERSON were entitled to compensation .

The assessment of compensation for PERSON was conducted by Sir PERSON on DATE . The assessment was made on the basis that Mr PERSON had spent DATE wrongfully imprisoned , allowing for the time that he would have served in any event for the other robberies . The assessor made a deduction from the award of non - pecuniary losses to reflect Mr PERSON 's previous criminality , but this deduction was “ comparatively modest ” - namely PERCENT - reflecting the fact that his previous offences had all been non - violent . The assessor awarded GBP CARDINAL in basic damages and GBP CARDINAL in aggravated damages . The aggravated damages were stated as being to take account of the conduct of the police in investigating and prosecuting the offences , which had involved forgery , deceit and violence , and the constant intimidation and violence to which Mr PERSON had been subjected in prison as a result of being labelled a “ child killer ” .

The assessment of compensation for the applicants was conducted by Lord PERSON on DATE . The assessor concluded that PERSON had been wrongfully detained for DATE and DATE , having regard to the time that he would have served in any event for the other robberies . With regard to the appropriate deduction to be made from the non - pecuniary losses to reflect previous criminality , the assessor noted that the applicant had been just under DATE at the time he was convicted , but that he had already accrued CARDINAL convictions for offences of dishonesty , burglary and driving offences , for which he had variously received fines and supervision orders . He had also , more significantly , been convicted of CARDINAL robberies with a firearm at the same time as his wrongful conviction . Finding that there was no way in which such serious convictions could be ignored , he made a deduction of PERCENT to reflect the first applicant 's past criminality .

The assessor went on to find that conviction and imprisonment had had consequences of the gravest kind for PERSON , not least because his imprisonment had resulted in serious psychiatric illness , which was likely to endure for the remainder of his life . He awarded the first applicant a total of GBP CARDINAL for non - pecuniary loss , which was broken down into GBP CARDINAL for all factors other than psychiatric illness ; GBP CARDINAL as a moderate uplift for aggravating factors of the case ; and GBP CARDINAL for psychiatric illness . The first applicant was also awarded GBP CARDINAL in respect of pecuniary loss . This incorporated a figure to reflect his past loss of earnings , from which a deduction of PERCENT was made to reflect saved living expenses . The assessor noted that a deduction for saved living expenses had not been made from PERSON award ; however , he considered that each case had to be decided on its own merits at the time of assessment . It was correct that living expenses should be deducted , since common law principles prohibited double compensation , and the award for loss of earnings should reflect the facts that living expenses would normally be paid for out of earnings , and that the first applicant had not incurred such expenses by reason of his imprisonment .

The assessor found that PERSON had been wrongfully detained for DATE , bearing in mind the time he would have served for the LOC robbery , to which he had pleaded not guilty but had later admitted , and which had been ordered to lie on his file . He was older than the first applicant at the time of his conviction and had a more significant offending history , consisting of CARDINAL previous convictions for CARDINAL offences including dishonesty ; burglary ; assault ; and driving whilst disqualified . For these offences he had variously received fines , supervision orders and a suspended prison sentence . The Chapel Hill robbery had therefore marked the culmination of significant criminal behaviour , and the assessor deducted PERCENT from his non - pecuniary award to reflect this .

The assessor found that the second applicant had had to endure harsh conditions and treatment , which had included sexual assault , in prison due to being perceived as a child murderer . As a result of such treatment , he had suffered depression and post - traumatic stress disorder . He had become addicted to heroin whilst in prison , an addiction which continued after his release until he underwent rehabilitation treatment . The assessor awarded the second applicant GBP CARDINAL in respect of non - pecuniary loss , of which GBP CARDINAL was for past and present psychiatric injury , and to which the PERCENT deduction for past criminality applied , making a total for non - pecuniary loss of ORG , CARDINAL . The assessor did not specify whether any part of the award reflected aggravating factors . A total of ORG was awarded for pecuniary loss , incorporating a deduction of PERCENT from the loss of earnings to reflect saved living expenses . The reasoning behind the deduction was identical to that in the first applicant 's assessment .

In response to representations by the applicants '

The applicants sought judicial review of Lord PERSON 's decisions and their applications were heard in ORG in DATE . Insofar as is relevant to the complaints pursued by the applicants before the ORG , ORG held that Lord PERSON had , by relying on common law principles derived from personal injury cases , which were not analogous to the cases in hand , misdirected himself in law in deducting a proportion from the award of pecuniary losses relating to loss of earnings for each applicant in order to reflect saved living expenses . ORG also found that the deductions made by Lord PERSON to reflect each applicant 's past criminality were unobjectionable in themselves . The only grievance that each applicant could have was in comparing the deduction applied to them with the smaller deduction applied by Sir PERSON to PERSON . The assessor was not bound by a principle of consistency and could depart from the findings of his predecessor if he considered that he had good reason to do so . Since the applicants could not have a justified sense of grievance about their own awards , viewed alone , their challenge on this ground failed .

The applicants appealed against ORG failure to quash the assessment on the grounds of the inconsistent deduction for past criminality ; the assessor appealed against the quashing of the part of his assessment which dealt with saved living expenses . The cross appeals were disposed of by ORG on DATE . With regard to the assessor 's appeal , ORG , who gave the lead speech , held that Lord PERSON had correctly regarded the deduction he imposed , on its facts and in accordance with the law , as being necessary to avoid compensating the applicants for a loss which they had not sustained . The deduction had been taken from the pecuniary loss award for loss of earnings , and had had no impact on the non - pecuniary loss award , which took account of the applicants ' suffering as a result of imprisonment . PERSON LJ concurred , adding that the cost of basic living expenses had not been set off because the applicants had received a benefit ; rather it had been set off because the applicants had not incurred expenses that they would have incurred had they been at liberty and in gainful employment . Given that the overall assessment separated the awards for loss of liberty DATE which was addressed under non - pecuniary loss – and for loss of earnings DATE which was addressed under pecuniary loss – and that the former was entirely appropriate , it was inevitable that the latter should take account of saved living expenses . PERSON also concurred . Lord PERSON 's appeal on this ground was therefore allowed .

As regards the alleged inconsistency involving the deductions made for past criminality , ORG stated that judicial consistency was always desirable , but not always achievable where decisions were taken by different decision - makers . Lord PERSON had reached a reasonable figure for the deduction , and had given his reasons for departing from the approach of his predecessor . The situation was akin to differences in sentencing . There the test for overturning a sentence was whether the person felt a justified sense of grievance . Here , the applicants had been subjected to deductions which , viewed on their own and objectively , were reasonable . They did not therefore have a justified sense of grievance . ORG and PERSON concurred . The applicant 's appeal on this ground was therefore dismissed .

The applicants then appealed both issues to ORG . Judgment was handed down on DATE , and the applicants ' appeals on each ground were dismissed by a majority of CARDINAL .

Lord PERSON , who gave the lead speech for the majority , stated with regard to the first issue that :

“ It is in my opinion inapt and understandably offensive to the appellants to regard or treat their imprisonment as a benefit conferred on them by the state . ”

However , to award the full amount of lost earnings without making any deduction for living expenses would , in reality , leave the applicants better off than if they had actually earned the money . The deduction led to the applicants being put in the position that they would have been in had they not been imprisoned and therefore they were compensated for their actual loss . Lords PERSON and ORG agreed with Lord PERSON 's analysis . Lord PERSON also agreed , adding that the deduction was plainly a reflection of the basic expenses of living in freedom , rather than a credit impermissibly claimed by the ORG to repay a supposed benefit .

However , Lord PERSON disagreed on this ground of appeal , holding that it was both unattractive and an infringement of constitutional principle to regard the deduction of living expenses from the applicants ' awards as being necessary to avoid double compensation . The Government was not permitted to charge prisoners for their board and lodging , as previous case - law dealing with prisoners ' earnings in prison had established . The case - law in respect of personal injury , which had been relied on by both sides throughout the instant proceedings , if properly understood , held that the normal expenditure of a plaintiff on food and accommodation was of no concern to the defendant . Deductions were admittedly made in situations where it was necessary to avoid double compensation ; that is , where an award for loss of earnings and an award for future care were both given . Since the applicants in this case had no claim for future care , no deduction was necessary to avoid double compensation . The cases regarding personal injury also differed from that of the applicants in an important way : whereas in personal injury claims the wrong had been done and the issue was how to treat their maintenance at public expense thereafter , the applicants in this case had been subjected to an ongoing wrong . They were being wronged whilst being maintained at public expense . Lord PERSON stated :

“ ORG , reasonableness and public policy dictate that no allowance should be made for so - called savings which the applicants were supposedly making while they were actually enduring the appalling wrong for which they are to be compensated . ”

In reality , it did not matter whether the cost of board and lodging was treated as a benefit that the applicants had received or as a deduction from their compensation for loss of earnings ; the result was that they were penalised for the time spent in prison , which was the very thing that their awards were designed to compensate them for . Lord PERSON would therefore have upheld the applicants ' appeal on this ground , while dismissing their appeal on the ground of the deduction for past criminality .

With regard to this second ground of appeal , Lord PERSON held that while it was generally desirable that decision makers , whether judicial or administrative , should act in a broadly consistent manner , the assessor who dealt with the applicants ' claims for compensation had not been bound to follow the previous decision dealing with their co - accused if he considered it to be erroneous . The matter of the appropriate deduction to be made for past criminality was a highly judgmental matter , and the assessor 's deductions , in themselves , were not impugned . The applicants ' only basis for complaint was the lesser deduction applied to their co - accused and this was not sufficient to give rise to a justified sense of grievance .

ORG and PERSON agreed with Lord PERSON on this ground of appeal ; Lord PERSON adding that , while at first blush the inconsistency between the deductions imposed by the different assessors appeared unfair to the applicants , in fact it had been done for good reason . Lord PERSON had either found his predecessor 's deduction to be irrationally low , or the CARDINAL assessors had taken a different approach to the overall calculation of non - pecuniary loss ; either way , the applicants ' appeal on this ground could not succeed . Lord PERSON also agreed that this ground of appeal should fail ; however , he expressed some doubts as to the sense of deducting a proportion for past criminality from the total award for non - pecuniary loss . He considered that it would make more sense to take the claimants ' criminal history into account when determining each of the various heads of loss than to apply a flat percentage deduction afterwards . However , the inconsistency in the deductions applied did not vitiate the assessor 's conclusions ; consistency was desirable but it had sometimes to yield to the larger imperative of delivering justice in the particular case .

Lord PERSON , on the other hand , dissented on this ground . He found that the deductions for past criminality should not have been applied to the portion of non - pecuniary loss which related to the conduct of the authorities who prosecuted the crime . There was no reason that a hardened criminal would suffer less than a person of previously good character in being unfairly convicted of a crime that he did not commit . Nor should the deduction for past criminality be applied to a claimant who had never been imprisoned before . The suffering inherent in being incarcerated for the first time would be just as abject , whether or not the person had a previous criminal record . Lord PERSON considered that the claimant 's history should be taken into account when calculating the non - pecuniary harm done to them , and that no further deduction was therefore necessary . On the issue of the consistency of the applicants ' awards with their co - accused , he found that compensating a person for wrongful conviction was designed to ameliorate an existing and justified sense of grievance ; therefore , if the award of compensation was not perceived as fair , then the aim of addressing a grievance had not been properly met . The deduction applied to the applicants did not appear to be fair , given the significantly smaller deduction applied to Mr PERSON , and his significantly more serious criminal record . The applicants ' appeal on this ground should therefore be upheld .

The right to compensation is contained in section CARDINAL of LAW DATE , which so far as relevant provides :

Subject to subsection ( CARDINAL ) below , when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice , the Secretary of ORG shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction or , if he is dead , to his personal representatives , unless the non - disclosure of the unknown fact was wholly or partly attributable to the person convicted .

No payment of compensation under this section shall be made unless an application for such compensation has been made to the Secretary of ORG .

The question whether there is a right to compensation under this section shall be determined by the Secretary of ORG .

If the Secretary of ORG determines that there is a right to such compensation , the amount of the compensation shall be assessed by an assessor appointed by the Secretary of ORG .

LAW DATE , by section CARDINAL , added a new subsection to follow subsection ( CARDINAL ) , above . The new subsection provides :

( CARDINAL ) In assessing so much of any compensation payable under this section to or in respect of a person as is attributable to suffering , harm to reputation or similar damage , the assessor shall have regard in particular to :

the seriousness of the offence of which the person was convicted and the severity of the punishment resulting from the conviction ;

the conduct of the investigation and prosecution of the offence ; and

any other convictions of the person and any punishment resulting from them .

Section CARDINAL of LAW DATE was enacted in order to give effect to LAW , to which GPE is a party . LAW ) provides :

When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice , the person who has suffered punishment as a result of such conviction shall be compensated according to law , unless it is proved that the non - disclosure of the unknown fact in time is wholly or partly attributable to him .

This Article closely resembles LAW No . CARDINAL , which GPE has not ratified .


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

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

On DATE the applicant caused a road accident in a state of drunkenness .

Subsequently , administrative proceedings were instituted against the applicant in which he was accused of , on the one hand , drunken driving and , on the other , of having failed to inform the authorities of the accident . Although proceedings on both charges were dealt with in CARDINAL single decision at the first instance level , the proceedings on the above charges were disjoined subsequently . However , the separate decisions were always given on DATE . Application no . CARDINAL concerns the charge of drunken driving , while application no . CARDINAL/CARDINAL concerns the charge of having failed to inform the authorities of the accident

On DATE ORG ( GPE ) summoned the applicant . However , he did not obey the summon . On DATE he filed a comment and asked ORG to submit the certificate that the breathalyser had been duly calibrated .

On DATE ORG served this certificate on the applicant . However , he did not submit any further comment .

On DATE ORG issued an order imposing a fine of ORG CARDINAL on the applicant for having caused a road accident in a state of drunkenness on DATE . With the same order it imposed a fine of ORG CARDINAL for having refrained from notifying the authorities that he had had caused damage to property by a road accident on DATE .

On DATE the applicant filed an appeal .

On DATE ORG ( PERSON the ORG ” ) , after having held a hearing on DATE , sitting with a single member , dismissed the applicant ’s appeal against the fine of ORG CARDINAL . On DATE , sitting as a panel of CARDINAL members , it dismissed the applicant ’s appeal against the fine of ORG CARDINAL .

On DATE the applicant lodged complaints with ORG ) against both decisions .

On DATE ORG quashed the ORG ’s decisions . It found that these decisions were based on an unconstitutional provision which had provided that LAW ( GPE ) did not apply in road - accident proceedings . LAW provides that , if the extenuating circumstances outweigh the aggravating circumstances , the fine imposed may be reduced to CARDINAL of the statutory minimum fine . This decision was served on the applicant ’s counsel on DATE .

On DATE ORG , sitting as a panel of CARDINAL members , partly allowed the applicant ’s appeal and reduced the fine to ORG CARDINAL as , meanwhile , the applicant ’s administrative criminal record was erased ( Tilgung ) . However , it found that the requirements of LAW were not met .

On DATE , sitting as a single member , it dismissed the appeal against the fine of ORG CARDINAL . It found that the requirements of LAW were not met .

On DATE the applicant lodged complaints with ORG against these decisions . He stressed that the ORG had failed to hold a hearing in the second set of the proceedings on his appeal despite his request in his appeal of DATE .

On DATE the applicant amended his complaints . He stressed that the composition of the ORG was unlawful as the same members had already decided on his appeal in the first set of the proceedings . Therefore , he challenged the members of the ORG .

On DATE ORG refused to deal with the cases for lack of prospects of success . These decisions were served on DATE .

On DATE the applicant requested that the cases be transferred to ORG and on CARDINAL DATE he amended his complaints . On DATE the ORG submitted its observations in reply .

On DATE ORG dismissed the applicant ’s complaints . It found that there was no indication of bias of the members of the ORG . As regards ORG ’s failure to hold a hearing in the second set of the proceedings it found that the applicant failed to file a new request to hold a hearing . These decisions were served on DATE .

Section CARDINALe of the Code of Administrative Offences ( GPE ) , as far as relevant , reads as follows :

“ ... CARDINAL . In case the appeal is expressly limited to points of law or concerns exclusively the severity of the sentence imposed , a hearing must only be scheduled if this is expressly requested in the appeal .

A hearing need not be held if the parties expressly waive their right to a hearing . The parties may express such a waiver up to the beginning of the hearing . ... ”

Section CARDINAL of LAW ( GPE ) , as far as relevant , reads as follows :

“ If the extenuating circumstances considerably outweigh the aggravating circumstances , or if the accused is under age , the minimum fine may be reduced to DATE of the amount . ”