EEG-SLACHTHUIS VERBIST IZEGEM v. BELGIUM

The applicant , ORG , is a public limited company under NORP law which specialises in livestock slaughter and has its head office in ORG ) . It was represented before ORG by PERSON and PERSON , lawyers practising in GPE .

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

Section CARDINAL ( CARDINAL ) ( since repealed ) of the PERSON of DATE on animal health provided for the setting - up of an animal health and production fund ( “ the fund ” ) attached to ORG . Its purpose was to contribute towards the financing of compensation , subsidies and other benefits in connection with combating animal diseases and improving animal hygiene and health and the quality of livestock and livestock products . The PERSON also stipulated that the fund would be financed in particular by compulsory contributions payable by individuals and companies engaged in the production , processing , transport , preparation , sale or marketing of livestock . The amounts and procedures for collection of the contributions were to be laid down by royal decree .

In order to give effect to this statutory provision , a royal decree on compulsory contributions to the animal health and production fund was enacted on DATE , entering into force on DATE . LAW set the initial amount of the compulsory contribution at MONEY ( BEF ) ( MONEY ( ORG ) ) per slaughtered bovine animal , LAW ( approximately ORG CARDINAL.CARDINAL ) per slaughtered calf and BEF CARDINAL ( approximately LAW ) per slaughtered pig . These amounts were subsequently amended by royal decrees dated DATE , DATE , CARDINAL DATE , DATE and DATE .

In DATE ORG decided to conduct an overall review of the charges payable in the agriculture and fisheries sectors in GPE and the use made of the resulting revenue , in particular in the form of aid . In order to obtain the information , it sent out a standard letter to all the Member GPE during DATE . In response , the NORP authorities informed ORG measures introduced by LAW and the royal decree of CARDINAL DATE .

On DATE ORG issued a decision in which it found that the aid financed by the compulsory contributions under the royal decree of CARDINAL DATE was incompatible with the common market within the meaning of LAW current LAW ) of the LAW establishing ORG ( “ the LAW ” ) . Under the terms of that Article , any aid granted by a Member ORG or through ORG resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods is incompatible in principle with the common market , in so far as it affects trade between Member GPE . In this particular case , the incompatibility arose out of the fact that the compulsory contributions were payable also in respect of animals imported from other Member GPE but were used exclusively to fund aid to NORP breeders . The ORG took the view that the system in question should therefore be abolished , in so far as products imported from other Member ORG also attracted the compulsory contribution at the stage of slaughter .

In the body of the decision the ORG further noted that the NORP authorities had not notified it in advance of their plans to introduce the system established by LAW and the royal decree of CARDINAL DATE . They had therefore acted in breach of LAW current LAW , which requires Member GPE to inform the Commission of any plans to grant or alter aid so that it may examine their compatibility with the common market , and which prohibits the Member ORG concerned from putting its proposed measures into effect until the ORG has taken a final decision .

According to the settled case - law of ORG in GPE , the prohibition on putting the proposed measures into effect referred to in the final sentence of Article CARDINAL ) has direct effect and gives rise to rights for individuals which the national courts must safeguard ( see in particular the following judgments of ORG of ORG ) : judgment of DATE , Case CARDINAL/CARDINAL , PERSON v. ORG and PERSON GPE ; judgment of CARDINAL DATE , ORG , ORG nationale du commerce extérieur des produits alimentaires et Syndicat national des négociants et transformateurs de saumon v. NORP Republic ; judgment of DATE , Case ORG , ORG international ( PERSON ) and others v. PERSON and others ) . ORG has also held that “ the ORG 's final decision does not have the effect of regularizing ex post facto the implementing measures which were invalid because they had been taken in breach of the prohibition laid down by the last sentence of LAW , since otherwise the direct effect of that prohibition would be impaired and the interests of individuals , which ... are to be protected by national courts , would be disregarded . ” According to ORG , “ any other interpretation would have the effect of according a favourable outcome to the nonobservance by the Member ORG concerned of the last sentence of Article PERSON ) and would deprive that provision of its effectiveness ” ( see ORG judgment of CARDINAL DATE , ORG , ORG nationale du commerce extérieur des produits alimentaires et Syndicat national des négociants et transformateurs de saumon v. NORP Republic , and judgment of DATE , Case ORG , ORG international ( PERSON ) and others v. PERSON and others ) .

After proceedings were brought before it by several companies engaged in the trading of calves and seeking reimbursement by ORG of the compulsory contributions they had made to the fund which they considered to be contrary to Articles CARDINAL , CARDINAL and CARDINAL of LAW , ORG referred a number of questions to ORG for a preliminary ruling . The questions were aimed essentially at ascertaining

( i ) whether ORG CARDINAL and CARDINAL , CARDINAL et seq . , CARDINAL and CARDINAL of the LAW precluded the introduction of a compulsory contribution which constituted a parafiscal charge levied on domestic and imported products alike , in accordance with the same collection procedures , and paid into a fund which operated solely for the benefit of domestic production , and

( ii ) whether the provisions in question had direct effect .

In its judgment of DATE ORG replied in substance that

( i ) a compulsory contribution constituting a parafiscal charge , applied under the same conditions as regards its collection to both domestic and imported products , the revenue from which was used for the benefit of domestic products only , constituted a charge having an effect equivalent to customs duties prohibited by LAW , if the advantages accruing from it wholly offset the burden borne by those products ;

( ii ) if those advantages only partly offset the burden borne by domestic products , such a charge constituted discriminatory taxation prohibited by LAW ;

( iii ) depending on the use to which the revenue was put , a parafiscal charge of that kind could also constitute ORG aid incompatible with the common market if the conditions for the application of LAW were met , that being a matter for the Commission to determine in accordance with the procedure laid down for that purpose in LAW ;

( iv ) the provisions of Articles CARDINAL , CARDINAL and CARDINAL of the LAW gave rise to rights for individuals which the national courts were obliged to uphold ; it was also for the national courts to safeguard the rights of individuals where , in introducing the charge , the Member ORG concerned failed to comply with its obligations under LAW , and where a Commission decision under LAW found the levying of the charge as a method of financing ORG aid to be incompatible with the common market .

Following this judgment by ORG , ORG Instance found that the compulsory contributions to the fund constituted discriminatory taxation prohibited by LAW . In a judgment of DATE it ordered ORG to repay to the applicants the amounts they had paid in respect of such contributions . The ORG appealed .

Section CARDINAL of the PERSON on animal health was amended by LAW DATE laying down social and other provisions .

The new system thus introduced stipulated that the royal decrees relating to the compulsory contributions were to be ratified by the legislature within DATE of their publication in the NORP Official Gazette . The royal decree of CARDINAL DATE on compulsory contributions to the animal health and production fund , as amended by the royal decrees of CARDINAL DATE , DATE and DATE , was ratified by means of the abovementioned section CARDINAL of the LAW DATE , with retrospective effect from DATE . However , the ratification related only to contributions paid in respect of domestic animals . With regard to imported animals , on the other hand , the legislature , seeking to give effect to ORG of CARDINAL DATE and the judgment of ORG of DATE , provided for contributions paid since DATE to be reimbursed . To obtain reimbursement , the claimants had to prove that ( CARDINAL ) the compulsory contributions paid had related to imported animals , ( CARDINAL ) they had not taken measures to pass the contributions back to the producer , or such measures had been cancelled and ( CARDINAL ) they had paid all the compulsory contributions due in respect of domestic animals .

As in the case of the Law of DATE , the NORP legislature did not inform ORG before enacting LAW DATE of its intention to alter the existing system of aid .

On DATE the applicant company brought an action against ORG before ORG of First Instance seeking the reimbursement of BEF CARDINAL,CARDINAL,CARDINAL ( approximately ORG CARDINAL ) , corresponding to the compulsory contributions it had paid into the animal health and production fund DATE and DATE .

The applicant company , arguing that the contributions were contrary to LAW , applied for reimbursement on the basis of the provisions governing sums wrongly paid or , in the alternative , on the basis of the ORG 's liability in tort .

According to the information available to the ORG , the case is still pending before ORG .

In a judgment of DATE ORG declared unfounded the appeal by the Government against the judgment of ORG of DATE .

In its judgment ORG considered in particular that the Government had been wrong to assert that ORG had found the system of aid to be incompatible with the LAW only with regard to the charging of contributions in respect of animals imported from other Member LAW . On the contrary , in the view of ORG , the Commission decision had found the system as a whole to be incompatible with the LAW , as an essential component of the system , namely the parafiscal charges levied on imported animals , was incompatible with the common market .

With regard to the new system introduced by LAW DATE ORG found that , in so far as it entailed altering the system of aid for the purposes of LAW ) of LAW , it should have been notified to the Commission in advance . As the requirement to inform the Commission had not been met , no valid basis existed for implementing the new system .

The Government appealed against the judgment on points of law .

In DATE the system was amended once more . Section CARDINAL of the Law of DATE was repealed and replaced by an autonomous law of DATE . The animal health and production fund was renamed the “ budgetary fund for the health and quality of animals and animal products ” .

Section CARDINAL of the Law of DATE provided for the fund to continue to be financed in particular by compulsory contributions from individuals and companies engaged in the production , processing , transport , preparation , sale and marketing of animals and animal products .

Section CARDINAL stipulated that , in the future , the amount of the contributions and the procedures for collection would be laid down by royal decree , it being understood that they would not be charged in respect of imported or exported animals .

With regard to the past , however , the amount of the contributions payable by abattoirs was laid down by section CARDINAL of the PERSON , which reproduced word for word the content of the royal decrees of DATE , DATE , DATE , CARDINAL DATE , DATE and DATE on compulsory contributions to the animal health and production fund for each of the periods covered by the respective decrees . In addition , section CARDINAL of the Law of DATE stipulated that , unlike most of the provisions of the law , which would enter into force on DATE of its publication in ORG , section CARDINAL would apply retrospectively from DATE , the date of entry into force of the royal decree of CARDINAL DATE . LAW , meanwhile , provided for automatic compensation of the difference between the amounts due under LAW and those paid under the royal decrees on compulsory contributions to the animal health and production fund .

However , like the PERSON of DATE , section CARDINAL of the Law of DATE made an explicit distinction between domestic animals and imported animals . It stipulated that , in the case of the latter , the compulsory contributions which had been paid from DATE under the royal decree of CARDINAL DATE , as amended by the royal decrees of CARDINAL DATE , DATE , DATE , CARDINAL DATE , DATE and DATE , would be reimbursed to claimants who could provide proof that the compulsory contributions they had paid related to imported animals , that they had not taken any measures to pass those contributions back to the producer , or that such measures had been cancelled , and that they had paid all the contributions payable in respect of domestic animals , including exported slaughtered animals and exported productive livestock .

Unlike the earlier legislation , a draft of the PERSON of DATE was notified in advance to ORG . In a letter of CARDINAL DATE the ORG informed ORG that it had no objections to raise in respect of the proposed aid measures .

Under the consolidated PERSON on the PERSON d'Etat of CARDINAL DATE , LAW ORG d'Etat issued an opinion on DATE relating in particular to the compatibility of the draft PERSON with the LAW . On that occasion , the ORG d'Etat issued a reservation as to the validity of the draft rules . The relevant passages of its opinion read as follows :

“ It appears ... that ORG is involved in a dispute with a number of parties who seek the reimbursement of contributions paid . The case gave rise to a request for a preliminary ruling by ORG . In that connection , the ORG ruled first that a charge applied under the same conditions as regards its collection to both domestic and imported products , but the revenue from which was used for the benefit of domestic products only , constituted a prohibited charge having an effect equivalent to customs duties . The ORG further ruled that a charge of that kind could constitute ORG aid incompatible with the common market , and that , if ORG was not informed in advance of such aid , individuals could seek to have it declared null and void by the domestic courts as a result .

ORG recently delivered judgment in the same case . According to ORG , the rules contained in section CARDINAL ( CARDINAL ) of the Law of CARDINAL DATE on animal health were defective , even after they had been amended by LAW DATE , on account of the fact that they had not been notified to ORG . The court also found that the defects were such that the above - mentioned statutory provision could not serve as a valid legal basis for any implementing measures . ORG was therefore ordered to reimburse certain amounts which had been paid under the royal decrees enacted to give effect to the above - mentioned statutory provision .

ORG has appealed against that judgment on points of law .

As the case is still pending , it is not for the ORG d'Etat to adopt a position on the scope of ORG judgment and whether it was correct .

Should it transpire that the draft rules are decisive for the eventual outcome of the case , it would be appropriate to conclude that ORG influenced the proceedings to its own advantage through the intervention of CARDINAL of the organs of ORG .

According to the case - law of ORG , interference by the legislature in pending proceedings may be in breach of the principle of equality of arms between the parties if it is aimed at influencing the outcome of the proceedings . Such interference may also give rise to a violation of LAW of LAW .

For that reason , the ORG d'Etat wishes to issue a reservation as to the validity of the draft rules . ”

The Government responded as follows to the observations of the ORG d'Etat , in the explanatory memorandum to the draft PERSON :

“ In its opinion , the ORG d'Etat states that ' such interference may also give rise to a violation of LAW of LAW .

It should be noted that ORG approved the preliminary draft PERSON which ... was notified to it in advance in accordance with LAW .

The case - law of ORG referred to by the PERSON d'Etat can not be applied to sections CARDINAL of the draft PERSON . The authorities have no intention of interfering in ongoing proceedings or of preventing a court from ruling on a particular issue . However , for budgetary reasons , they are obliged to limit the negative financial impact of judicial decisions which would require ORG to repay very considerable sums of money .

The system provided for by sections DATE , which is partly retrospective , can be considered to be reasonable in view of the need to ensure the proper functioning of the fund in the general interest . The budgetary impact of having to repay the amounts concerned would imperil the funding of animal health policy ...

In order to prevent such an outcome , the authorities must act by laying down retrospective provisions in a general law . ”

On DATE the applicant company , in common with other companies engaged in the livestock trade , lodged an application with ORG seeking to have sections CARDINAL and CARDINAL of the Law of DATE set aside .

In support of its application , it submitted in particular that the provisions in question were in breach of ORG CARDINAL and CARDINAL of the LAW , taken in conjunction with Articles CARDINAL , CARDINAL and CARDINAL of the LAW , with LAW of LAW , with LAW No . CARDINAL , with the principle of legal certainty and with the general legal principle of the non - retrospective application of legislation .

In enacting sections CARDINAL and DATE , the legislator had replaced the provisions of a royal decree with a retrospective statutory rule . In the view of the applicant company , that amendment prevented courts and tribunals before which proceedings had been brought from ruling on the lawfulness of the royal decree under LAW , which stated in particular that courts and tribunals could apply decrees only if they were in accordance with the law . The result , in the view of the applicant company , was an unjustified difference in treatment between those citizens to whom the provisions applied and the rest of the population , with the former being deprived of the judicial safeguards contained in Articles CARDINAL , CARDINAL and CARDINAL of the LAW .

In its judgment No . CARDINAL of CARDINAL DATE ORG dismissed the applications .

More specifically , the submissions based on a violation of ORG CARDINAL and CARDINAL of the LAW , taken in conjunction with LAW and CARDINAL of LAW , LAW No . CARDINAL and the general principles of the non - retrospective application of legislation and the separation of powers , were dismissed on the following grounds :

“ ORG By applying the contributions payable by slaughterhouses retrospectively ... , the legislature infringed their right to a fair hearing , equality of arms and access to a court in a discriminatory manner , as they were deprived of the possibility of alleging before the courts a violation of LAW ( CARDINAL ) ( former LAW ) ) of LAW , or of securing the enforcement of judicial decisions finding that the above provision had been violated by LAW .

B.CARDINAL.CARDINAL LAW ( CARDINAL ) ( former LAW ) ) of LAW requires Member GPE to inform the Commission of any plans to grant or alter aid , so that their compatibility with the common market can be examined .

The same provision prohibits the Member ORG concerned from putting the proposed measures into effect until the ORG has taken a final decision . Aid measures which are implemented prematurely , and a fortiori those implemented without the Commission having been informed , are unlawful .

B.CARDINAL.CARDINAL On no account may the impugned provisions result in the challenging of final judicial decisions . Were they to pursue such an aim , they would be in breach of LAW and CARDINAL of the LAW by depriving a category of persons of the benefit of final judicial decisions , something which can not be justified in any circumstances .

It is true that the provisions in question are liable to influence proceedings currently in progress before the ordinary courts . However , they do not make it impossible for the applicants to allege a violation of LAW ( CARDINAL ) ( former LAW ) ) of LAW . The court further observes that the second complaint , in case number CARDINAL , alleges a violation of provisions of the LAW taken in conjunction with Articles CARDINAL and CARDINAL ( former ORG CARDINAL ) of LAW .

The court notes that the aid measures provided for by LAW were implemented without prior notification to the Commission and that the corresponding contributions should therefore in principle be reimbursed . However , that finding does not mean that the provisions currently at issue violate Articles CARDINAL and CARDINAL ( former ORG CARDINAL ) of LAW , as they were notified to the Commission in time and were found to be compatible with the common market .

It should also be observed that the applicants are not challenging the aid measures as such , only the use to which the contributions designed to fund those measures are put .

The failure to comply with the requirement to inform the Commission of aid measures in advance does not create an inviolable right to permanent exemption from payment of the contributions in question , including those based on a new instrument whose compatibility with LAW and the LAW is beyond dispute . That instrument would be unconstitutional only if it was itself in breach of LAW and CARDINAL of the LAW taken in conjunction with the provisions relied on by the applicants .

B.CARDINAL The principle of the non - retrospective application of legislation is a safeguard aimed at preventing legal uncertainty . It requires the content of laws to be foreseeable and accessible so that individuals can foresee , to a reasonable degree , the consequences of a particular measure when it is taken .

Applying a provision retrospectively can be justified only if it is essential in order to achieve an aim which is in the public interest , such as the proper functioning or continuity of the public service . Should it transpire , moreover , that applying a provision retrospectively influences the outcome of CARDINAL or more sets of judicial proceedings in a particular way or prevents the courts from ruling on a particular point of law , the principle in question requires that exceptional circumstances must exist justifying such intervention by the legislature , which restricts , for a particular section of the population , the judicial safeguards afforded to every citizen .

B.CARDINAL Sections CARDINAL , DATE and DATE of the Law of DATE do not conflict with the provisions of NORP law on ORG aid , as the legislature has abolished the contributions which were levied on imported animals . They do not create legal uncertainty , as they reproduce the content of the royal decree of CARDINAL DATE on compulsory contributions to the animal health and production fund . While it is true that the impugned provisions apply retrospectively , they do not contain any new provisions which depart from those contained in the above - mentioned royal decree , with the result that they merely consolidate provisions whose scope was known to the persons concerned . The latter could have expected the measure to be retained once the requirement to inform ORG had been met . The impugned PERSON was notified to ORG in accordance with LAW ( former LAW , and the Commission , in a letter of CARDINAL DATE , informed the Government that ' having examined the LAW pursuant to ORG CARDINAL to CARDINAL ( former ORG CARDINAL ) of the LAW ' , it had no objection to its introduction . Furthermore , since ORG of DATE , it had already been established that the aid referred to in the royal decree of CARDINAL DATE was incompatible with the common market only ' in so far as products imported from other Member GPE also attracted the compulsory contribution at the stage of slaughter ' .

DATE The impugned contributions are an important source of financing for the fund for the health and quality of animals and animal products . The legislature was entitled to take the view that it was in the public interest , and in particular in the interest of public health , to maintain the measure , which has been in existence since DATE and is vital to the health and quality of animals and animal products .

ORG As regards the possibility that the impugned provisions may influence the outcome of ongoing proceedings , the fact , noted at GPE above , that the ORG unreservedly found the PERSON of DATE to be compatible with the common market , together with the overriding importance of public health , justify the intervention by the legislature in the present case .

ORG As the applicants have a legitimate expectation that the courts will find some of the contributions paid on the basis of ORG of the implementing decrees to be unlawful , the claim to recovery of the contributions may be regarded as a possession within the meaning of the Convention provision relied on by the applicants

However , the impugned PERSON does not deprive the applicants of their property , as , by repealing the legal basis for those contributions , it acknowledges that they were wrongly paid . The fact that it provides for repayment of the difference between those claims and the contributions due on the basis of the provisions at issue can not be regarded as being in breach of LAW No . CARDINAL , as the contributions have not been found to be contrary to Articles CARDINAL and CARDINAL of the LAW , taken in conjunction particularly with LAW . Accordingly , the impugned LAW strikes a fair balance between the general interest and the interest of the applicants , as it amounts to controlling the use of property in a way which was arguably necessary in order to secure the payment of taxes or other contributions within the meaning of LAW No . CARDINAL . ”

In a judgment of DATE ORG dismissed an appeal by the Government against the judgment of ORG of DATE .

The relevant passages of ORG judgment read as follows :

“ The domestic courts are required to uphold the rights of individuals alleging a violation of the prior notification requirement , by drawing all the inferences , in accordance with their national law , as regards the validity of measures implementing the aid in question and the recovery of the financial support granted in breach of that provision .

The ORG 's decision regarding the compatibility of national aid with the conditions laid down in LAW ( former LAW does not cover the unlawfulness of implementing measures which violate the prohibition imposed by LAW ) ( former LAW ) ) of LAW .

Having observed that the new system was not notified to the ORG , the judgment found , without breaching the relevant legal provisions and the general legal principle referred to in the grounds of appeal , that , in accordance with LAW ( CARDINAL ) ( former LAW ) ) of LAW , the penalty for breach of the regulations made it impossible for the Member ORG concerned to implement the system of aid introduced by the original PERSON of DATE on animal health and the royal decrees implementing that PERSON .

In accordance with LAW ( CARDINAL ) ( former LAW ) ) of LAW , the Commission must be informed in good time of any plans to grant or alter aid .

As regards ( new ) aid which Member GPE may intend to grant , a preliminary procedure exists , in the absence of which no aid can be considered properly granted .

According to the judgment of ORG of DATE in Case CCARDINAL/CARDINAL , the prior notification requirement applies not only to the granting of aid but also to its alteration . That requirement must also be complied with where the Commission considers that the aid is incompatible , in whole or in part , with NORP law and the Member ORG amends the previous system by replacing it with a new system of aid .

The above requirement may be fulfilled in the manner specified by the ORG in its decision ordering the prohibited aid to be abolished . If the requirement is not met , the aid in question will once more become unlawful .

Section CARDINAL of the Law of DATE was amended by LAW , more particularly in relation to the arrangements for financing the animal health and production fund . In respect of domestic animals , section CARDINAL ratifies , with effect from DATE , the royal decrees of CARDINAL DATE relating to compulsory contributions , as amended ; in respect of imported animals , it orders the reimbursement of contributions paid from DATE , subject to certain conditions .

While it was partly intended to bring the system of aid into line with ORG DATE , the above - mentioned legislative amendment simultaneously introduced a new basis for the contributions and replaced the old system of aid with a new one .

In its Decision of CARDINAL DATE the ORG gave GPE DATE from the date on which the decision was notified in which to inform it of the measures taken to give effect to the decision .

The judgment noted that neither the original system of aid nor the alteration of that system had been notified to the Commission .

In finding that the altered system should have been notified to the ORG and that , in the absence of such notification , the sums in question had been wrongly paid , the judgment was not in breach of the legal provisions in this sphere relied on by the appellant ... ”

Other companies in turn brought proceedings against the NORP State seeking repayment of the contributions in question . When the courts of first instance allowed the applications , the ORG appealed against the judgments before ORG . The latter decided to refer several questions to ORG of ORG for a preliminary ruling .

In a judgment of DATE ORG replied in substance as follows :

( i ) Article PERSON ) of LAW ( current LAW ) ) must be interpreted as precluding , in circumstances such as those in the main proceedings , the levying of charges which finance specifically an aid scheme that has been declared compatible with the common market by a Commission decision , in so far as the charges were imposed retrospectively in respect of a period prior to the date of that decision ;

( ii ) the Commission Decision of DATE relating to aid measure No . N CARDINAL/CARDINAL did not approve the retrospective application of the PERSON of DATE on the establishment of a budgetary fund for the health and quality of animals and animal products .

COMPLAINTS

Relying on LAW , the applicant company complained that sections DATE of the Law of DATE establishing a budgetary fund for the health and quality of animals and animal products violated its right of access to a court and the principle of equality of arms . In enacting the PERSON the legislature had , in its opinion , interfered in an unacceptable manner in the proceedings of an economic nature between the company and ORG . The royal decree of CARDINAL DATE , the lawfulness of which it had challenged , had effectively been repealed with retrospective effect from DATE , and its content - like that of the subsequent decrees – had been reproduced in section CARDINAL of the PERSON , also with retrospective effect from DATE . As a result of the legislature 's actions , courts before which proceedings had been brought were prevented from ruling , in accordance with Article CARDINAL of LAW , on the lawfulness of the royal decree in question . Consequently , the action brought by the applicant company was deprived of any effect .

In the view of the applicant company , the approach adopted also amounted to a violation of LAW taken in conjunction with LAW . By giving the content of the royal decree of CARDINAL DATE the status of a legislative provision ex post facto , the legislature had effectively introduced an unjustified difference in treatment between those citizens affected by the provision and the rest of the population , as only the former were deprived of the judicial safeguards enshrined in particular in LAW .

Relying on LAW No . CARDINAL , the applicant company further submitted that LAW constituted unjustified interference with its right to peaceful enjoyment of its possessions , as it abolished with retrospective effect the claim which the applicant company believed it had against ORG on the basis of the unlawful nature of the royal decree of CARDINAL DATE .

In the view of the applicant company , the approach adopted also amounted to a violation of LAW No . CARDINAL taken in conjunction with LAW . By giving the content of the royal decree of CARDINAL DATE the status of a legislative provision ex post facto , the legislature was preventing courts from ruling on the lawfulness of the royal decree in question in accordance with LAW . The result was an unjustified difference in treatment between those citizens affected by the provisions in question and the rest of the population , the former being deprived of the right to secure repayment of the sums wrongly paid .


CASE OF MELTEX LTD AND MOVSESYAN v. ARMENIA

Violation of Art. 10;Remainder inadmissible;Non-pecuniary damage - award

Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

NORP The applicant company was established in DATE and has its registered office in GPE . The second applicant was born in DATE and lives in GPE .

The second applicant first became involved in TV broadcasting in DATE when he established the ACARDINAL + television company , the first independent television company in GPE . Initially , ACARDINAL + operated as a collector , producer and disseminator of news and information . Information was gathered from and sent to all districts of GPE , as well as foreign television broadcasting companies via satellite communication .

In DATE ACARDINAL + acquired a ORG television licensed frequency on which it broadcast during assigned periods . According to the second applicant , in DATE ACARDINAL + experienced difficulties with the ORG regarding its broadcasts : telephone calls were received from public officials on a DATE basis threatening to deprive ACARDINAL + of its assigned broadcasting TIME and criticising the contents of ACARDINAL + programmes perceived to be directed against Government policy . ACARDINAL + was informed that the broadcast frequencies were granted by the ORG in order to defend and further ORG interests rather than to criticise ORG authorities . During the run - up to the presidential election , ACARDINAL + refused to broadcast only pro - Government material . As a result , its ORG broadcasting operation was suspended in DATE .

NORP In DATE the second applicant established and registered the applicant company . The applicant company was set up as an independent broadcasting company outside ORG control . Later the second applicant created the ACARDINAL + television company within the structure of the applicant company . On DATE , in preparation for broadcasting , the applicant company opened a school to train personnel , such as journalists , cameramen and technicians , who were later employed by the applicant company and other television companies . On DATE the applicant company started television broadcasting , sharing capacity and content with GPE “ REN ” TV , a NORP television company . Over time , the volume of the content produced by the applicant company increased significantly .

On DATE the applicant company was granted a licence by the then ORG ( ՀՀ կապի նախարարություն ) permitting it to install a television transmitter in GPE and to broadcast within the decimetric wave band via its ACARDINAL + television channel . The licence was granted for a period of DATE .

In DATE the applicant company established “ PERSON , a network of CARDINAL private licensed regional television companies , broadcasting TIME a day . According to the applicants , the television network was widely recognised as CARDINAL of the few independent voices in television broadcasting in GPE . The primary focus was upon the dissemination of independent , well - processed news information and analysis . The content of the broadcasts included international and domestic news analysis ( PERCENT ) , advertising ( PERCENT ) and various entertainment programmes .

In DATE legislative changes were introduced in the sphere of television and radio broadcasting . ORG Radio Broadcasting Act ( « Հեռուստատեսության և ռադիոյի մասին PERSON ՀՀ օրենք – “ the LAW ” ) , passed in DATE , established a new authority , ORG ( Հեռուստատեսության և ռադիոյի ազգային հանձնաժողով – “ the ORG ” ) , which was entrusted with regulating the licensing and monitoring the activities of private television and radio companies . The ORG was a public body composed of CARDINAL members appointed by the President of GPE . LAW also introduced a new licensing procedure , according to which a broadcasting licence was granted on the basis of a call for tenders conducted by the ORG in respect of the list of available frequencies .

During DATE all existing broadcasting licences were temporarily re - registered by the ORG until the relevant calls for tenders were announced .

On DATE the ORG replaced the applicant company 's licence with a new licence . The new licence was granted for band CARDINAL and was due to expire on DATE .

On DATE the ORG decided to postpone the call for tenders for band CARDINAL until the adoption of relevant rules and regulations and to permit the applicant company to continue to operate on band CARDINAL for an indefinite period of time until such call for tenders was announced .

On DATE ORG ( « Հեռուստատեսության և ռադիոյի ազգային հանձնաժողովի կանոնակարգ ORG օրենք – “ LAW ” ) was passed .

On DATE the ORG adopted LAW . CARDINAL approving ORG and ORG ( ՀՀ հեռուստատեսության և ռադիոյի ազգային հանձնաժողովի որոշում PERSON հեռարձակման լիցենզավորման մրցույթի կարգը հաստատելու մասին – “ the LAW ” ) .

On DATE the ORG announced calls for tenders for various broadcasting frequencies , including band CARDINAL .

The applicant company and CARDINAL other companies , GPE and ORG , submitted bids for band CARDINAL . The applicant company alleged that GPE had never previously operated in the field of television broadcasting and its main focus had been as the organiser of entertainment shows for young people and students . None of its employees had a background in professional journalism and the company had no premises , equipment or financial or technical infrastructure to commence broadcasting at the time of its bid . It further alleged that ORG had been registered DATE before the tender process took place and had had no previous experience of any sort in the field of broadcasting .

On DATE , before the winner of the tender process was announced , the applicant company instituted proceedings against the ORG before ORG ( ՀՀ տնտեսական դատարան ) , claiming that the ORG had violated a number of legal provisions when announcing the call for tenders .

On DATE the ORG held a points - based vote and recognised GPE as the winner of the call for tenders for band CARDINAL .

On DATE the ACARDINAL + television channel ceased to broadcast .

On DATE the applicant company lodged an additional claim with ORG seeking , inter alia , to annul the decision of DATE .

On DATE ORG rejected the applicant company 's claims .

On an unspecified date the applicant company lodged an appeal on points of law with ORG ( ՀՀ վճռաբեկ դատարան ) .

On DATE ORG dismissed that appeal . Those proceedings are the object of application no . CARDINAL before the ORG , examined separately .

According to the applicants , due to their lack of broadcasting experience and sufficient resources , GPE never managed to commence broadcasting and , after DATE , sold a controlling interest in the company to another legal entity .

On DATE the ORG put out a call for tenders for band CARDINAL . The applicant company and another company , GPE TV , submitted tenders .

The bidding was held on DATE . The bidders were allowed TIME each to make their presentations and TIME each were allotted for questions from the ORG .

On DATE the ORG held a points - based vote and recognised GPE TV as the winner of the tender process . A copy of that decision was sent to the applicant company on DATE . It stated :

“ Based on sections DATE and CARDINAL of [ LAW ] , sections CARDINAL , DATE and DATE of [ the NTRC ] Regulations Act and LAW no . CARDINAL of [ the ORG ] of DATE approving [ the Tendering Rules ] , and taking into account the results of the call for tenders for television broadcasting on decimetric band CARDINAL in the area of GPE , [ the ORG ] decides ( CARDINAL ) to recognise GPE TV CJSC as the winner of the call for tenders for television broadcasting on decimetric band CARDINAL in the area of GPE , and ( CARDINAL ) to grant a television broadcasting license to GPE TV CJSC . ”

On DATE the second applicant submitted a letter to the Head of the ORG requesting the latter to give reasons for the refusal of its bid .

By a letter of DATE the ORG informed the second applicant that :

“ ... when granting a licence through a tendering procedure , [ the ORG ] only takes a decision recognising the best organisation as the winner and granting or refusing a broadcasting licence . [ The applicant company ] was not selected as the best organisation in the call for tenders for band CARDINAL . ”

On DATE the ORG announced a new call for tenders for CARDINAL other bands .

The applicant company submitted bids for CARDINAL of the CARDINAL bands , namely bands CARDINAL , DATE and DATE .

On DATE the tender process was suspended in connection with court proceedings instituted against the ORG by some other participants in the call for tenders .

On DATE the ORG held points - based votes and recognised the winners of the call for tenders : band CARDINAL was assigned to ORG , band CARDINAL to TV CARDINAL and band CARDINAL to GPE TV . The ORG 's decisions were identical in wording to its decision of DATE . Copies of these decisions were sent to the applicant company on DATE .

On an unspecified date , the second applicant submitted a letter to the Chairman of the ORG requesting the latter to inform him of the reasons for the refusal of a licence in accordance with LAW . The second applicant also requested the ORG to adopt a decision refusing a licence following its consideration of the applicant company 's bid , as required by sections CARDINAL and CARDINAL of LAW . He further requested the ORG to provide the results of the examination of the applicant company 's bid , the TIME of its hearings and the separate opinions of its members .

In another letter , the second applicant requested the Chairman of the ORG to provide copies of the bids submitted by the companies which submitted the winning tenders for bands CARDINAL , DATE , DATE and DATE .

By CARDINAL letters , both dated DATE , the ORG replied to the second applicant in terms identical to its letter of DATE . The letters added that the second applicant could familiarise himself with TIME of the hearings and the relevant bids at the ORG 's office , where he could also make photocopies of the bids with his own technical means .

On an unspecified date , the ORG announced a call for tenders for bands CARDINAL and DATE .

The applicant company and CARDINAL other companies , ORG and ORG , submitted bids for both bands .

On DATE the ORG held points - based votes and selected the winning tenders : band CARDINAL was assigned to ORG and band CARDINAL went to ORG . The ORG 's decisions were identical in wording to its previous decisions . Copies of these decisions were sent to the applicant company on DATE .

On DATE the ORG replied to the second applicant 's request for a reasoned decision in the same manner as before .

On DATE the ORG put out a call for tenders for the last vacant band , namely band CARDINAL .

The applicant company and CARDINAL other companies submitted their bids .

On DATE the ORG held a points - based vote and awarded the licence to ORG . The ORG 's decision was identical in wording to its previous decisions . A copy was sent to the applicant company on DATE .

On DATE the applicant company lodged CARDINAL applications with ORG complaining about the ORG 's inaction . In particular , the applicant company submitted that the ORG was obliged under LAW to notify in writing the reasons for the refusal of a licence in the calls for tenders for band CARDINAL and bands CARDINAL , DATE and CARDINAL within DATE after taking the relevant decisions , and under section DATE of LAW to take a decision to grant or refuse a licence in respect of each bid submitted . The applicant company sought , inter alia , a declaration that the failure of the ORG to notify the reasons for the refusals and to take any decision in respect of its bids was unlawful , and an order obliging the ORG to give reasons for the refusals .

On DATE the applicant company lodged another application , supplementing the initial CARDINAL with similar complaints in respect of the calls for tenders for bands CARDINAL and DATE and band CARDINAL .

On DATE ORG decided to dismiss the applicant company 's applications as unfounded . In doing so , having examined the parties ' arguments , ORG found , inter alia , that :

“ It is understood from section CARDINAL of [ LAW ] , sections CARDINAL , CARDINAL , DATE and DATE of [ the NTRC ] Regulations Act , and Paragraphs DATE and CARDINAL of [ LAW ] that [ the ORG ] must adopt only one of the decisions envisaged by CARDINAL of [ the NTRC ] LAW , and in the cases in question [ the ORG ] adopted the decision recognising the winner and granting a television and radio broadcasting licence not in respect of each bid but based on the results of the call for tenders . The above is also directly implied in the wording of LAW of [ the NTRC ] Regulations Act , according to which decisions to award television and radio broadcasting licences shall be adopted by [ the ORG ] based on the results of the tender process and not as a result of the examination of a bid .

The law actually distinguishes between cases where licences are awarded on the basis of the results of a tender process and cases where they are awarded without a call for tenders , as in the case of cable broadcasting licences . That being so , [ the ORG ] , based on the results of the tender process , adopted one of the decisions envisaged by CARDINAL of [ the NTRC ] LAW , namely to grant a television and radio broadcasting licence .

[ The ORG 's ] decision to grant a licence to the winner of the call for tenders can not be interpreted other than as a decision refusing a licence to the other participants in the bidding . Following the adoption of a decision by [ the ORG ] determining the winner of the call for tenders and awarding a licence to it , there can be no uncertainty for the other participants in the tender process as to whether their bid has or has not been refused , since they are told who the winner is and , consequently , that they have not won .

It has been established in the court proceedings that [ the ORG ] , in keeping with the requirements of section CARDINAL of [ LAW ] , section CARDINAL of [ the NTRC ] LAW and LAW , adopted decisions granting television broadcasting licences and sent them to [ the applicant company ] within the period prescribed by CARDINAL of [ the NTRC ] LAW and LAW , as evidenced by [ the letters of DATE , DATE , DATE and DATE ] .

The above - mentioned letters actually serve as evidence that [ the ORG ] informed [ the applicant company ] that it was not selected as the best organisation in the tender process , and , having been informed of the decisions concerned , [ the applicant company ] also learnt that it had not won the television broadcasting licences for decimetric bands CARDINAL , DATE , DATE , DATE , DATE and DATE , and metric band CARDINAL in the GPE area , meaning that its bid was rejected , which substantiates the fact that [ the applicant company ] was informed of the reasons and legal grounds for the above - mentioned decisions of [ the ORG ] , and in particular that [ the ORG ] , in adopting its decision , was guided by the requirements of section CARDINAL of [ LAW ] , which establishes the selection criteria for licence holders .

Thus , in the light of the above the court concludes that [ the second applicant ] was informed in a timely and lawful manner about the decisions concerning the results of the television broadcasting licensing tender processes for decimetric bands CARDINAL , DATE , DATE , DATE , DATE and DATE , and metric band CARDINAL in the GPE area , which in substance contained the grounds and reasons for the refusal of [ the applicant company 's ] bids . Consequently , [ the ORG ] did not display inaction and did not violate [ the applicant company 's ] rights guaranteed by law , therefore these claims are unfounded and must be dismissed . ”

DATE . On DATE the applicant company lodged an appeal on points of law , raising the same arguments as in its initial applications .

On DATE ORG dismissed that appeal , repeating verbatim the relevant findings of ORG and concluding that :

“ In such circumstances the arguments raised in the appeal on points of law are unfounded because they are rebutted in detail by the findings contained in ORG judgment . ”

On DATE the applicant company instituted proceedings in ORG against the ORG , contesting its decision of CARDINAL DATE awarding the licence for band CARDINAL to ORG The applicant company submitted , inter alia , that ORG had provided false , incomplete and misleading information in its tender which the ORG had ignored when granting the licence . It further submitted that ORG had neither the means nor the intention to broadcast on that frequency and would effectively pass on its broadcasting licence to a company called ORG , which was unregistered as a media entity .

In the proceedings before ORG , the applicant company lodged several requests for the ORG to be ordered to provide certain documents which it allegedly had in its possession and which , according to the applicant company , were relevant to the outcome of the case , including an agreement signed between ORG and ORG allegedly contained in the former 's tender documents . It also requested the court to call Mr S. , the head of ORG , as a witness .

ORG examined and dismissed these requests . As to the request to order the provision of certain documents , ORG found that the applicant company had failed to substantiate its inability to obtain this evidence on its own , as required by the law . Nor was it proven that the evidence in question was actually in the ORG 's possession . As to the request to call PERSON , the Commercial Court found this to be unnecessary because there was sufficient written evidence to decide on the disputed matters .

On DATE ORG decided , in a judgment containing CARDINAL and a CARDINAL pages of legal reasoning , to reject the applicant company 's claims as unfounded . In doing so , having examined the parties ' arguments , ORG found , inter alia , that the relevant tender process had been conducted , and the resulting decision taken , in compliance with the law .

On DATE the applicant company lodged an appeal on points of law , which it later supplemented on DATE , raising the same arguments as in its initial application .

As to the dismissal of the applicant company 's requests , ORG found that ORG had examined and dismissed them in reasoned decisions , and that there was therefore no issue of equality of arms .

The relevant provisions of the LAW , as in force at the material time , read as follows :

“ Unlawful acts of public authorities , local self - government bodies and their officials can be annulled or their actions ( inaction ) can be contested ( hereafter , annulling the unlawful act ) if the act in question contradicts the law and if there is evidence that the applicant 's rights and ( or ) freedoms guaranteed by LAW and laws have been violated . ”

The relevant provisions of LAW , as in force at the material time , read as follows :

“ In GPE television and radio broadcasting shall be conducted on the basis of a licence . ”

“ Physical or legal persons can be licensed to operate CARDINAL television and radio company or CARDINAL television and/or CARDINAL radio company having on - air broadcasting in the same coverage area . ”

“ ORG ( hereafter , ORG ) is an independent body with the status of a public agency whose activity is regulated by this law , its regulations and the legislation of GPE . ORG deals with licensing and monitoring of only private television and radio companies ( television companies or radio companies ) .

ORG : ( a ) shall allocate broadcasting frequencies on a public and competitive basis and ensure the publication of complete information on the results of a call for tenders ; ... ( c ) shall grant licences ... ”

“ The National Commission shall have CARDINAL members appointed by the President of GPE for a term of DATE , with the exception of the first composition ... ”

“ ... The Commission shall be composed of CARDINAL members . ”

“ ORG is an independent regulatory public authority CARDINAL of whose members shall be elected by ORG for a term of DATE and the other CARDINAL appointed by the President of the Republic for a term of DATE with the exception of the first composition . ” ]

“ A licence shall be the only legal basis authorising the broadcast of television and radio programmes and the use of a particular frequency or a cable network for broadcasting in the territory of GPE , except for the cases prescribed by law .

A television and radio broadcasting licence shall be granted for a particular available frequency on the basis of a call for tenders ... ”

“ When selecting the licence - holder , the ORG shall take into account :

( a ) the predominance of programmes produced in - house ;

( b ) the predominance of programmes produced in GPE ;

( c ) the technical and financial capacity of the applicant ; and

( d ) the professional level of the staff . ”

“ ... ORG shall give proper reasons for its decisions to select a licence - holder , refuse a licence or invalidate a licence ” ]

“ A licence shall not be granted if :

( a ) the applicant can not be a licence - holder pursuant to this law ;

( b ) the information contained in the bid is inaccurate ; or

( c ) the technical capacity for television and radio broadcasting is lacking or the declared technical capacity is insufficient .

An applicant shall be informed in writing of the reasons for the refusal of a licence within DATE from the date of the decision .

The refusal of a licence can be contested before the courts . ”

“ ... A licence to broadcast television and radio programmes or to produce and broadcast [ such programmes ] shall be granted to television and radio companies : ( a ) ... ; ( b ) for DATE for on - air television and radio broadcasting . ”

The relevant provisions of LAW read as follows :

“ The Commission shall define the procedure , conditions and time - limits of the tender process for television and radio broadcasting licences .

DATE the expiry of a television and radio broadcasting licence or once a vacant ( unassigned ) frequency becomes available , the Commission shall announce a call for tenders for a licence to broadcast on that frequency . ”

“ The Commission shall : ... ( c ) grant licences ... ”

In order to grant a broadcasting licence , the ORG , at its meeting and within the period prescribed by the tendering rules , shall adopt a decision on the basis of the results of a call for tenders .

The Commission shall publish information on the place , time and agenda of its meeting in the press not DATE before the date of the meeting . ”

“ Following the consideration of a bid , the Commission shall adopt one of the following decisions : ( a ) to grant a licence ; or ( b ) to refuse a licence . ”

“ A copy of the decision granting or refusing a licence shall be duly sent to the applicant within DATE from its adoption . ”

The relevant provisions of LAW , as in force at the material time , read as follows :

“ CARDINAL . The Commission shall hold an open point - based vote in the order in which the bids are examined . The best organisation shall be selected according to the results of the point - based vote .

The Commission shall adopt a decision recognising the best organisation as the winner and granting a television and radio broadcasting licence .

The Commission shall deliver its decision immediately after its adoption .

A copy of the ORG 's decision shall be duly sent to the participants in the tender process within DATE after its adoption . ”

On DATE ORG to Member States on the independence and functions of regulatory authorities for the broadcasting sector , in which it recommended that the Member States , inter alia , “ include provisions in their legislation and measures in their policies entrusting the regulatory authorities for the broadcasting sector with powers which enable them to fulfil their missions , as prescribed by national law , in an effective , independent and transparent manner , in accordance with the guidelines set out in the appendix to this recommendation ” .

The guidelines appended to the recommendation , provide , as relevant :

The rules governing regulatory authorities for the broadcasting sector , especially their membership , are a key element of their independence . Therefore , they should be defined so as to protect them against any interference , in particular by political forces or economic interests .

For this purpose , specific rules should be defined as regards incompatibilities in order to avoid that :

– regulatory authorities are under the influence of political power ;

– members of regulatory authorities exercise functions or hold interests in enterprises or other organisations in the media or related sectors , which might lead to a conflict of interest in connection with membership of the regulatory authority .

Furthermore , rules should guarantee that the members of these authorities :

– are appointed in a democratic and transparent manner ;

– may not receive any mandate or take any instructions from any person or body ;

– do not make any statement or undertake any action which may prejudice the independence of their functions and do not take any advantage of them .

One of the essential tasks of regulatory authorities in the broadcasting sector is normally the granting of broadcasting licences . The basic conditions and criteria governing the granting and renewal of broadcasting licences should be clearly defined in the law .

The regulations governing the broadcasting licensing procedure should be clear and precise and should be applied in an open , transparent and impartial manner . The decisions made by the regulatory authorities in this context should be subject to adequate publicity .

All decisions taken and regulations adopted by the regulatory authorities should be :

– duly reasoned , in accordance with national law ;

– open to review by the competent jurisdictions according to national law ;

– made available to the public . ”

The relevant extracts of this Declaration provide as follows :

“ CARDINAL . In most ORG member states , the members of regulatory authorities are appointed by the parliament or by the head of state at the proposal of parliament . In some member states , in order to ensure that the membership of the regulatory authority reflects the country 's social and political diversity , part or all of the members are nominated by non - governmental groups which are considered to be representative of society . Further , in a few member states , the law provides objective selection criteria for the appointment of members .

By contrast , in a number of countries , members are appointed by sole decision of CARDINAL state authority , e.g. the head of state or a state department , often without clearly specified selection criteria . The appointment of members of regulatory authorities by the head of state and/or parliament has sometimes been criticised advancing that , in such cases , membership would represent or reproduce political power structures .

Concerns have often been raised that the nominating or appointing bodies could exert pressure on the members after their appointment . In fact , in some member states , the members of regulatory authorities are frequently accused of acting on behalf of the state body that designated them or political formation behind the designating or appointing authority . ”

In paragraph CARDINAL of this Resolution the PACE stated :

“ As regards freedom of expression and media pluralism , the ORG is concerned at developments in the audiovisual media in GPE and expresses serious doubts as to pluralism in the electronic media , regretting in particular that the vagueness of the law in force has resulted in ORG being given outright discretionary powers in the award of broadcasting licences , in particular as regards the television channel ACARDINAL + . ”


Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano

The applicant was born in DATE and lives in GPE .

The applicant is an attorney . Some business transactions of her client 's spouse were investigated by the police but she herself was not a suspect .

On DATE police investigators conducted a search at the applicant 's office . During the search some e - mail correspondence were copied from her computer and certain documents were seized .

NORP By letter dated CARDINAL DATE the head of the investigation ( tutkinnanjohtaja , undersökningsledaren ) informed the applicant that the seizure of the data had not been successful due to the fact that the wrong files had been copied , and that the information copied had been destroyed . The applicant allegedly never received a copy of the seized files so it was not possible to verify whether the seizure of the data really had been unsuccessful . The seized documents remained in the police 's possession .

The pre - trial investigation has been concluded and the case has been submitted to the public prosecutor for consideration of charges . No court proceedings have been initiated yet .

According to LAW ( perustuslaki , grundlagen , Act no . CARDINAL/CARDINAL ) , the sanctity of everyone 's home is guaranteed . Measures derogating from this right , and which are necessary for the purpose of guaranteeing basic rights and liberties or for the investigation of crime , must be laid down by an Act .

LAW , section CARDINAL , subsection CARDINAL , of LAW ( pakkokeinolaki , tvångsmedelslagen , Act no . CARDINAL ) provides that a search may be conducted , inter alia , if there is reason to suspect that an offence has been committed and provided the maximum sentence applicable exceeds DATE imprisonment .

According to LAW , LAW , of LAW , an official with the power of arrest shall decide on a search of LOC . However , a police officer may carry out a search of LOC without a warrant when the purpose of the search is to locate a person to be apprehended , arrested , detained , brought to court or subjected to a bodily search , or to seize an object , when continuously followed or monitored since the commission of the offence . A police officer may carry out a search of the LOC also in other urgent cases .

The person whose domicile is being searched , or in his or her absence someone else , must be given the opportunity to be present at the search and to call a witness , unless this causes delay . If none of the above - mentioned persons was present at the time of the search , the person whose domicile has been searched must be immediately informed ( LAW , section CARDINAL , subsection CARDINAL ) .

Chapter CARDINAL , section CARDINAL , subsection CARDINAL of LAW provides that a document shall not be seized for evidential purposes if it may be presumed to contain information in regard to which a person referred to in LAW , section CARDINAL , of the Code of Judicial Procedure is not allowed to give evidence at a trial and provided that the document is in the possession of that person or the person for whose benefit the secrecy obligation has been prescribed . A document may nevertheless be seized if , under section CARDINAL , subsection CARDINAL of ORG , a person referred to in LAW , Article CARDINAL , of the Code of Judicial Procedure would have been entitled or obliged to give evidence in the pre - trial investigation about the matter contained in the document .

Under LAW , section CARDINAL , subsection CARDINAL , of LAW ( oikeudenkäymiskaari , rättegångsbalken ; as modified by Acts no . CARDINAL and PERSON ) , counsel may not testify in respect of what a client has told him or her for the purpose of pleading a case , unless the client consents to such testimony . Although subsection CARDINAL provides for an exception to this secrecy obligation if the charges concern an offence carrying a minimum sentence of DATE imprisonment ( or attempting or aiding and abetting such an offence ) , this exception does not extend to counsel for an accused .

Under LAW ( laki asianajajista , lagen om advokater ; as modified by Act no . PERSON ) an advocate or his assistant shall not without due permission disclose the secrets of an individual or family or business or professional secrets which have come to his knowledge in the course of his professional activity . Breach of this confidentiality obligation shall be punishable in accordance with LAW , section CARDINAL or CARDINAL , of LAW , unless the law provides for a more severe punishment on another count .

LAW , LAW , of LAW provides that , at the request of a person whom the case concerns , the court shall decide whether the seizure of any materials shall remain in force . A request which has been submitted to the court before its examination of the charges shall be considered within DATE of its reception by the court . The court shall provide those with an interest in the matter an opportunity to be heard , but the absence of any such persons shall not preclude a decision on the issue . A decision reviewing a seizure is subject to a separate appeal ( LAW , LAW , subsection CARDINAL ) .

According to section CARDINAL , subsection CARDINAL , of the LAW everyone who has suffered a violation of his or her rights or sustained loss through an unlawful act or omission by a civil servant or other person performing a public function shall have the right to request that the civil servant or other person in charge of the public function be sentenced to a punishment and that the public organisation , official or other person in charge of a public function be held liable for damages , as provided in more detail by an LAW .

Chapter DATE , section CARDINAL , subsection CARDINAL , of LAW ( rikoslaki , strafflagen , as modified by Act no . CARDINAL/CARDINAL ) , provides that if a public official , when acting in office , intentionally in a manner other than that provided above in this LAW violates or neglects to fulfil his official duty based on the provisions or regulations to be followed in official functions , and the act , when assessed as a whole , taking into consideration its detrimental and harmful effect and the other circumstances connected with the act , is not a petty offence , he shall be sentenced for violation of official duties to a fine or to imprisonment for a maximum of DATE .

Chapter DATE , section CARDINAL , of LAW ( as modified by Act no . CARDINAL/CARDINAL ) provides that if a public official , when acting in office , through carelessness or lack of caution , in a manner other than that referred to in DATE , subsection CARDINAL , violates or neglects to fulfil his or her official duty based on the provisions or regulations to be followed in official functions , and the act , when assessed as a whole , taking into consideration its detrimental and harmful effect and the other circumstances connected with the act , is not a petty offence , he shall be sentenced for negligent violation of official duties to a warning or to a fine .

According to LAW , section DATE , of LAW ( laki oikeudenkäynnistä rikosasioissa , lagen om rättegång i brottmål , as modified by Act no . CARDINAL/CARDINAL ) , an injured party may bring a private prosecution only if the public prosecutor has decided not to press charges .

Under LAW and CARDINAL of LAW ( vahingonkorvauslaki , skadeståndslagen , Act no . CARDINAL ) proceedings may be brought against the ORG in respect of damage resulting from fault or neglect by its employees in the performance of their duties .


No violation of Art. 6-1 and 6-3-c as regards the fact that the applicant was not permitted to speak at the hearing in the Court of Cassation;Violation of Art. 6-1 as regards the failure to supply a copy of the Advocate-General's submissions;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award

Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

The applicants were born in DATE , CARDINAL and DATE and live at Irigny , at ORG and in GPE respectively .

NORP The applicant was arrested on DATE and charged by an investigating judge at PERSON tribunal de grande instance with using a vehicle registration document that had been obtained illegally and handling a stolen vehicle . He was remanded in custody from DATE to CARDINAL DATE . On DATE he was committed to stand trial before ORG .

In a judgment of CARDINAL DATE ORG dismissed the applicant 's application to have the proceedings set aside as defective and , finding him guilty , imposed a suspended sentence of DATE imprisonment and a fine of MONEY ( ORG ) . The applicant appealed .

On DATE ORG upheld the judgment of ORG in its entirety . The applicant appealed to ORG .

By a judgment of CARDINAL DATE ORG dismissed the appeal .

On DATE the applicant was caught by a speed trap while at the wheel of his vehicle . The gendarmerie reported him for exceeding the speed limit by CARDINAL k.p.h . , namely by driving at CARDINAL k.p.h . in a CARDINAL ORG . speed - limit zone .

On DATE ORG found him guilty of the offence , and imposed a fine of ORG CARDINAL,CARDINAL and banned him from driving for DATE .

On DATE ORG upheld the conviction , and increased the fine to ORG CARDINAL,CARDINAL and the ban to DATE .

By a judgment of CARDINAL DATE ORG dismissed the applicant 's appeal .

On DATE the police reported the applicant for CARDINAL offences of failing to stop at a red traffic light . He was summoned to appear at ORG for a hearing on DATE .

On DATE ORG found the applicant guilty of the offences . It imposed CARDINAL fines of ORG CARDINAL,CARDINAL each and banned him from driving for DATE .

On DATE ORG upheld the judgment of ORG in its entirety . On DATE the applicant appealed to ORG . He sought communication of the advocate - general 's written submissions in order to be able to reply to them , but to no avail .

By a judgment of DATE ORG dismissed the applicant 's appeal .

NORP The relevant provisions , as worded at the material time , read as follows :

“ Judgments of indictment divisions and judgments of the criminal courts against which no ordinary appeal lies may , in the event of a breach of the law , be set aside on an appeal on points of law to ORG lodged by the public prosecutor or by the party adversely affected , according to the distinctions made hereafter .

The appeal must be lodged with ORG . ”

“ Appellants in ORG may lodge a pleading bearing their signature and containing the grounds of their appeal with the registry of the court against whose judgment they are appealing either when giving notice of appeal or within DATE . The registrar shall issue them with a receipt . ”

“ After the expiry of that time - limit , convicted appellants may send their pleading directly to ORG ; the other parties may not avail themselves of this provision without being represented by a member of ORG . ... ”

“ Save where the President of ORG decides otherwise , convicted appellants shall lodge their pleading with the registry of ORG DATE from the date of the notice of appeal .

The same rule shall apply to notices of acting lodged by lawyers representing an appellant in ORG . ”

“ The pleadings shall contain the grounds of appeal and cite the legal provisions that are alleged to have been infringed . ...

They must be lodged within the prescribed time - limit . No further pleadings may be added to them once the reporting judge has filed his report . Any pleading setting out additional grounds that is lodged out of time may be declared inadmissible . ”

“ The reports shall be presented at the hearing . The parties ' lawyers shall make their observations after the report , if appropriate . The public prosecutor shall make his or her submissions . ”

Current practice is for the advocate - general to inform the parties ' lawyers before DATE of the hearing of the tenor of his or her submissions and in cases where , at the request of the lawyers , there is an oral hearing , they are entitled to reply to his or her submissions orally or by a note sent to the court in deliberations ( see PERSON and PERSON v. GPE , judgment of DATE , Reports of Judgments and Decisions DATE , p. CARDINAL , § CARDINAL ) .

In cases in which representation by a member of the ORG d'Etat and ORG is not compulsory , an ordinance of DATE , LAW of which has not been repealed , lays down that the parties may make oral representations with the permission of ORG . On the basis of the ordinance of DATE ORG accepts that it is possible for it to give the parties leave to address it , or for a member of the ordinary bar to speak on their behalf . Although it is for ORG to decide whether or not to grant permission according to the circumstances ( Court of Cassation , ORG , CARDINAL DATE , ORG . crim . [ Criminal Bulletin ] no . CARDINAL ) , it appears that its practice is to refuse such applications ( see the period DATE and the judgments available on the Légifrance Internet site ) in terms similar to the following :

“ Regard being had to LAW DATE , which has not been repealed in so far as it concerns the procedure applicable before ORG ; as [ the appellant ] has set out his grounds of appeal against the impugned decision in a pleading which he has lodged in person , his appearance in person before ORG does not appear to be either necessary or appropriate ; it is not necessary to order it . ” ( judgment of DATE , appeal on points of law no . CARDINAL )

As regards more particularly cases involving road - traffic offences ( such as parking or speeding offences ) , there have been numerous decisions in which applications made by members of the ordinary bar have been turned down , ORG holding as in the following decision :

“ [ The appellant ] has requested permission to appear before ORG assisted by Mr [ ... ] , a member of ORG [ ... ] . As [ the appellant ] has set out his grounds of appeal against the impugned decision in a pleading which he has lodged in person , his appearance in person before ORG does not appear to be essential . ” ( judgment of DATE , appeal on points of law no . DATE )

Indeed , the Government acknowledge that such permission is rarely granted , the principle being that the members of the ORG d'Etat and ORG have a monopoly on making oral representations . They must consult the President of ORG beforehand regarding the ground of appeal on points of law for which they consider oral representations to be necessary . In DATE oral representations were only made in CARDINAL appeals out of a total of CARDINAL that were heard .

NORP The members of the PERSON d'Etat and ORG are the successors to the ORG attorneys , who practised during LOC Rights of audience before FAC were reserved to attorneys who were royal officers and owned their official appointment ( charge ) from DATE . By the time of the Revolution in DATE there were QUANTITY attorneys at FAC . The Revolution brought their activities to an end . They became counsel at the Tribunal of Cassation that was created in DATE , and subsequently , in DATE , members of ORG . Another group of lawyers practised at the ORG d'Etat . The CARDINAL groups were merged by an ordinance of DATE . That ordinance , which for DATE served as LAW , was amended by a decree of DATE ( which codified the conditions of access to the profession and has since undergone a number of subsequent amendments ; see also the law of CARDINAL DATE , which made women eligible to enter the profession , and the decree of CARDINAL DATE , allowing lawyers to practise in professional partnerships ) . The existence of a specialised bar is peculiar to GPE and GPE ( where only members of ORG belong to a separate bar council ) .

Members of the ORG d'Etat and ORG , unlike members of the ordinary bar , are ministerial officers . The number of official appointees has been irrevocably set at CARDINAL since DATE . The conditions of access require in principle the candidate to be a practising lawyer , to have undergone special training and to have passed a professional entrance examination organised by ORG ( the legislation nevertheless provides for a number of exemptions and special means of access ) . Appointments are made by order of the Minister of ORG , on the basis of a reasoned opinion issued by ORG , the Vice - President of the ORG d'Etat and the President of ORG .

In proceedings before ORG , representation by a member of the ORG d'Etat and ORG is in principle compulsory , particularly in civil proceedings , unless an exemption is obtained . Members of the ORG d'Etat and ORG can not represent the parties before the lower courts ( although they may give advice and appear before the administrative courts of appeal and administrative courts ) . In proceedings before ORG they are required to consult with the President of ORG before the hearing if they wish to make oral representations , in order to explain the points of law they wish to make orally and to determine by agreement the arrangements under which they will be allowed to do so .

Directive CARDINAL/CARDINAL/EC of ORG and of ORG DATE to facilitate practice of the profession of lawyer on a permanent basis in a member ORG other than that in which the qualification was obtained provides , inter alia , at LAW , sub - paragraph CARDINAL : “ ... in order to ensure the smooth operation of the justice system , member GPE may lay down specific rules for access to supreme courts , such as the use of specialist lawyers ” ( see also ORG of ORG , DATE , ORG of GPE , Case no . MONEY ) .


Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security (Article 5-3 - Release pending trial;Trial within a reasonable time);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Non-pecuniary damage - award

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in DATE and lives in Gdańsk .

The applicant was a member of the management board of the ORG Gdańsk joint - stock company ( “ the company ” ) , manufacturing ships and other industrial steel constructions .

On DATE the ORG ( Prokuratur Rejonowy ) opened a criminal investigation into allegations that the company ’s management board had intentionally acted to the detriment of the enterprise ( celowe działanie na szkodę spółki ) .

On DATE the ORG ( Sąd Rejonowy ) remanded the applicant in custody on reasonable suspicion that he had committed a series of offences related to the running of the company . The court also considered that keeping the applicant in detention was justified by the severity of the penalty which could be imposed if he were convicted and the risk that he might attempt to obstruct the proceedings , especially since the applicant ’s and his co - accused ’s testimonies had been contradictory . That decision was upheld by ORG ( PERSON ) on DATE .

The applicant ’s detention was subsequently extended by decisions of the ORG of DATE , DATE and CARDINAL DATE , which were upheld by ORG on DATE , CARDINAL DATE and CARDINAL DATE respectively . In their decisions , the domestic courts repeatedly relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged , the serious nature of the offences , the complexity of the case which involved many individuals and the risk that the applicant would obstruct the proceedings , for example , by inducing witnesses to give false testimony . The domestic courts considered the latter argument particularly relevant in light of the fact that the penalty which the applicant faced was severe . In addition , the domestic courts invoked the difficulties in obtaining evidence , including from abroad , and the need to examine CARDINAL witnesses and many accounting , tax and auditing experts . On DATE the case file already consisted of CARDINAL volumes .

The applicant ’s pre - trial detention was further extended by decisions of the Gdańsk Regional Court of DATE , CARDINAL May and DATE , which were upheld by ORG ( Sąd Apelacyjny ) on DATE and DATE and a further decision of an unspecified date .

On DATE and DATE CARDINAL motions for the applicant ’s release were rejected .

NORP In the meantime , on DATE the prosecutor lodged a bill of indictment with ORG against the applicant and CARDINAL other co - accused . The applicant was charged with CARDINAL offences including appropriation of the company ’s assets , causing damage to the company and acting to the detriment of the company ’s creditors . The prosecutor requested to hear evidence from CARDINAL witnesses and to have read out the testimonies of CARDINAL other witnesses .

On DATE ORG requested ORG to transfer the case to ORG due to its complicated nature . On DATE the case was remitted to ORG .

The first hearing took place on DATE .

The applicant ’s detention pending trial was further extended by the first - instance court on DATE .

On DATE the ORG decided to lift the preventive measure and to release the applicant . The court considered that continuing the applicant ’s detention was no longer necessary because CARDINAL of the co - accused , who had initially been detained , had already made their statements and CARDINAL of the other co - accused had remained at liberty throughout the proceedings . For these reasons there was no need to keep the applicant in pre - trial detention .

It would appear that the criminal proceedings against the applicant are still pending .

On DATE the applicant complained of the unreasonable length of the criminal proceedings against him to the Minister of ORG and to the President of ORG .

By letters of DATE and DATE the respective authorities rejected the applicant ’s complaint as ill - founded . The authorities considered that in the light of the complexity of the case the impugned proceedings had not been lengthy .

The applicant did not lodge a complaint under LAW June CARDINAL on complaints about a breach of the right to a trial within a reasonable time .

NORP The applicant was detained in FAC from DATE until DATE . During this time he was held in CARDINAL different cells . The size of those cells varied between CARDINAL ORG and CARDINAL m² . The space per person ranged CARDINAL TIME .

DATE and DATE the applicant was detained in cell CARDINAL , which measured CARDINAL m² and was shared by CARDINAL detainees , including the applicant ( PERCENT per person ) .

DATE , the applicant was held in cell number CARDINAL , which measured PERCENT and was shared by CARDINAL detainees , including the applicant ( CARDINAL m² per person ) .

NORP The cells were equipped with separate toilets .

The applicant stressed that the conditions of detention in the CARDINAL person cell were inhuman . He submitted that in each cell there had been a bunk bed ( QUANTITY ) . However the surface of the toilet had been included in the total surface and constituted part of the CARDINAL m² per person . The design of the cells made it impossible for CARDINAL prisoners to move around freely .

The applicant also claimed that the food served to all detainees was of poor quality and insufficient quantity . He had to buy additional food and despite that he had lost QUANTITY during his detention .

The Government argued that the applicant had had access to clean sanitary facilities , running water and bathing facilities . The food served to him complied with the relevant standards of ORG . The applicant was afforded a TIME walk per day . He could have his own television set or he could watch television in the prison ’s social room .

NORP The list of visits supplied by the Government shows that DATE and DATE the applicant received CARDINAL visits , of which CARDINAL were meetings with his defence counsel and CARDINAL meeting with a notary . The remaining CARDINAL visits involved the applicant ’s family ( wife , daughter and mother ) . They lasted from CARDINAL ( on CARDINAL occasion ) to TIME but on most occasions were TIME long .

On DATE , the authorities rejected the applicant ’s request to have an additional visit from his relatives . That decision did not contain any reasoning .

On CARDINAL occasions ( DATE , DATE and DATE ) the applicant ’s contacts with his family were restricted and he was separated from the visitors by a Perspex partition .

The applicant , without specifying any details , submitted that , during his pre - trial detention , his correspondence with his family had been monitored and withheld by the authorities .

He also submitted that his wife and children had been allowed to visit him in the remand centre only once a month . Most of the applicant ’s requests to meet more often with his family had been rejected by the authorities . The applicant ’s family PERSON visits were short and without the possibility of direct contact . On several occasions he had had no direct contact with his family because he had been separated from them by a Perspex partition and they could communicate with him only by internal phone .

Lastly , he denied receiving a visit from a certain ORG on DATE .

The Government submitted that DATE and DATE most of the family visits took place at a table ( przy stoliku ) in the presence of a guard . Out of the CARDINAL visits of the applicant ’s wife , mother and youngest child , direct contact was granted on QUANTITY occasions .

The Government submitted that in addition to the visits listed above , the applicant received a visit from ORG on DATE .

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

A detailed description of the relevant domestic law and practice concerning general rules governing the conditions of detention in GPE and domestic remedies available to detainees alleging that the conditions of their detention were inadequate are set out in the ORG ’s pilot judgments given in the cases of PERSON v. GPE ( no . CARDINAL ) and PERSON v. GPE ( no . CARDINAL/CARDINAL ) on DATE ( see § § DATE and § § CARDINAL respectively ) . More recent developments are described in the ORG ’s decision in the case of PERSON v. GPE ( no . CARDINAL/CARDINAL ( dec ) , § § DATE , CARDINAL DATE ) .

Pursuant to LAW , as applicable until DATE , a detainee was allowed to receive visitors , provided that he had obtained a visit permission ( “ zezwolenie na widzenie ” ) from the authority at whose disposal he remained , i.e. an investigating prosecutor ( at the investigative stage ) or from the trial court ( once the trial had begun ) or from the appellate court ( in appeal proceedings ) . A detainee was entitled to CARDINAL onehour long visit per month .

According to paragraphs CARDINAL and CARDINAL , a visit should take place in the presence of a prison guard in a manner making it impossible for a detainee to have direct contact with a visitor but the authority which issued the permission may set other conditions . In practice , there are QUANTITY types of visits : an “ open visit ” , a “ supervised visit ” ( widzenie w obecności funkcjonariusza PERSON ) and a “ closed visit ” .

An open visit takes place in a common room designated for visits . Each detainee and his visitors have at their disposal a table at which they may sit together and can have an unrestricted conversation and direct physical contact . Several detainees receive visits at the same time and in the same room .

A supervised visit takes place in the same common room but the prison guard is present at the table , controls the course of the visit , may restrict physical contact if so ordered under the visit permission , although his principal role usually is to ensure that the visit is not used for the purposes of obstructing the proceedings or achieving any unlawful aims and to prevent the transferring of any forbidden objects from or to prison .

A closed visit takes place in a special room . A detainee is separated from his visitor by a Perspex partition and they communicate through an internal phone .

The judgment was given following an application , lodged by the ORG on DATE , alleging that LAW was incompatible with a number of constitutional provisions , including the principle of protection of private and family life ( LAW ) , the principle of proportionality ( LAW ) , LAW . ORG judgment became effective on DATE , the date of its publication in ORG ) .

The Constitutional Court ruled that LAW , in so far as it did not specify the reasons for refusing family visits to those in pre - trial detention , was incompatible with the above provisions . The court held that this provision did not indicate with sufficient clarity the limitations on a detainee ’s constitutional right to protection of private and family life . The court also considered that LAW was incompatible with LAW in so far as it did not provide for a possibility to appeal against a prosecutor ’s decision to refuse a family visit to those in pre - trial detention .

On DATE ORG adopted amendments to LAW . In particular , subparagraphs CARDINALa-CARDINALf were added . These provisions stipulate that a detainee is entitled to CARDINAL family visit per month . In addition , they indicate specific conditions for refusing a family visit to a detainee and provide an appeal procedure against such a refusal . The amendments entered into force on DATE .

The relevant domestic law and practice concerning remedies for excessive length of judicial and enforcement proceedings , in particular the applicable provisions of the Law of DATE on complaints about a breach of the right to a trial within a reasonable time , ( Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the GPE ” ) are stated in the ORG ’s decisions in the cases of ORG v. GPE , no . CARDINAL/CARDINAL ( dec . ) , § § DATE , ORG ; and NORP v. GPE , no . CARDINAL ( dec . ) , ORG CARDINALVIII ; and in its judgment in the case of ORG v. GPE , no . CARDINAL , § § CARDINAL , ECHR CARDINAL-V.