Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger

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

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

The applicant is a businessman and a political opposition supporter in GPE , who participated in protest rallies following the constitutional referendum in DATE and the presidential elections in DATE ( and was briefly arrested and allegedly beaten up by the police after the last - mentioned event ) , provided financial support to QUANTITY of the opposition parties , and initiated some ORG protest actions at a local level . From DATE he and his wife allegedly received anonymous threats . In DATE the financial police allegedly demanded from the applicant a bribe of MONEY ( ORG ) not to institute criminal proceedings against him , about which he complained to ORG . The threats against him allegedly became more serious thereafter .

In DATE the applicant left GPE for an unspecified country .

Since DATE he has been living in GPE .

In DATE the applicant was charged in absentia in GPE with illegal entrepreneurial activities ( a criminal offence ) .

On DATE ORG decided to remand him in custody and on DATE the applicant was declared wanted by the police .

On DATE he applied to ORG for refugee status .

On DATE he was notified that his application had been rejected and appealed .

On DATE ORG sent a letter to ORG and ORG in the GPE region instructing it to register the applicant at the address indicated in GPE pending the examination of his appeal till DATE . The outcome of the appeal proceedings is unknown .

On DATE the applicant was additionally charged in GPE with the creation and management of a criminal organisation and tax evasion in respect of particularly large sums . On DATE ORG again decided to remand him in custody and on DATE he was again declared wanted by the police .

During DATE the applicant was arrested CARDINAL times by the NORP police at the request of the GPE authorities and subsequently released , with his last release dated DATE .

On DATE the ORG lodged an official request for the applicant ’s extradition , which remains pending before the NORP authorities . The request contained the following assurances :

- the applicant would not be prosecuted for any other crime committed before the extradition without the consent of ORG of GPE ;

- he would not be removed to a third country without the consent of ORG of GPE ;

- he would not be subjected to torture , inhuman or degrading treatment or punishment ;

- after the termination of the criminal proceedings or after serving his sentence , if one was imposed , the applicant would be free to leave GPE ;

- the request for extradition was not made in order to prosecute the applicant for political , racial , religious or ethnic reasons .

On DATE the applicant requested ORG to prohibit ORG from extraditing him to GPE , alleging that there was a risk that he would be subjected to ill - treatment by GPE law - enforcement officials and would not enjoy the benefit of a fair trial .

On DATE the President of the ORG indicated to ORG , under LAW , that the applicant should not be removed to GPE unless and until ORG had had the opportunity to consider the case further . At the same time , a factual request was sent to the Government with questions , in particular whether the NORP authorities had received any assurances in respect of the applicant and whether they had had or would have regard to the risk of the applicant ’s ill - treatment in GPE .

On DATE the Prosecutor General of Belarus supplemented the assurances that the applicant would be ensured a fair trial and that he would be provided with adequate medical treatment if needed .

By a letter of CARDINAL DATE the Prosecutor General of GPE informed ORG that relations between GPE and GPE in the extradition domain were quite positive . In particular , DATE and DATE GPE extradited to GPE CARDINAL people charged with criminal offences or for execution of sentences . None of those extraditions was followed by any complaints from the extradited individuals , their representatives or non - governmental organisations concerning any violations of their rights . Therefore , ORG considered that there were no reasons not to trust the assurances from his GPE counterpart . The above - mentioned letter also contained the following statement :

“ In connection with Mr PERSON ’s application to ORG and having regard to the ORG ’s requirement under LAW to suspend his extradition , ORG Office of GPE guarantees that this person will not be extradited to law - enforcement authorities of GPE until the ORG has considered the case . ”

In their reply of CARDINAL DATE to the ORG ’s factual request the ORG noted that ORG had not yet decided on the applicant ’s extradition to GPE and that the NORP authorities would take into account any risks of violation of the applicant ’s rights under the ORG in case of his extradition . The applicant commented that those assurances were insufficient .

On DATE the President of the ORG decided to maintain until further notice the interim measure indicated under LAW and to give priority treatment to the above application in accordance with Rule CARDINAL of ORG .

On DATE the Government informed the ORG about new legislation enacted in DATE ( see PERSON part below ) and requested the ORG to lift the interim measure indicated in the case . They maintained that the new procedure was directly available to the applicant , the courts were authorised to refuse his extradition if they considered that it would violate his Convention rights , and that ORG decisions on extradition could no longer be enforced immediately .

The applicant disagreed , claiming that under the newly introduced extradition procedure it was impossible to suspend decisions to extradite .

In the light of the parties’ submissions , on DATE the President of the ORG decided to discontinue application of the interim measure indicated under LAW .

On DATE the applicant presented a letter from CARDINAL of the opposition leaders , PERSON , confirming the applicant ’s involvement in opposition activities .

The parties have not informed the ORG about any decision on extradition taken by the ORG in the applicant ’s case to date .

On DATE LAW introduced a new chapter to LAW regulating proceedings for extradition to and from GPE . Relevant articles of this new chapter provide , among other things , as follows :

Article CARDINAL . Refusal to extradite a person

“ A decision not to extradite a person to a foreign state may be taken if :

CARDINAL NORP the person ’s extradition is incompatible with the obligations of GPE under international treaties to which GPE is a party ... ”

Article CARDINAL . Decision on a request for extradition

“ ... If a decision to extradite a person is taken ... , the person shall be issued with a copy of the decision . If such a decision has not been challenged before a court within DATE , the authorities shall organise the actual extradition of the person to the relevant authorities of the foreign state . ”

Article CARDINAL . Procedure for appeal against a decision to extradite a person

“ A decision to extradite a person may be appealed against by the person concerned , his or her defence counsel or legal representative before a local court ...

An appeal shall be examined in a single - judge formation within DATE of the date of its receipt by the court . The hearing shall be held in the presence of the prosecutor , the person concerned , and his or her defence counsel or legal representative if the latter participates in the proceedings .

Following the examination , the judge shall take a reasoned decision to :

CARDINAL reject the appeal ;

CARDINAL allow the appeal and quash the decision to extradite .

An appeal against the judge ’s decision may be lodged with a court of appeal by the prosecutor who participated in the hearing before the court of first instance or by the person concerned , his or her defence counsel or legal representative , within DATE of the date of delivery of the impugned decision . The lodging of an appeal against the judge ’s decision with the court shall suspend its entry into force and its execution . ”


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

The applicant was born in DATE and lives in GPE , GPE .

On DATE the applicant 's alleged common law partner ( izvenzakonski partner ) , PERSON , died .

On DATE ORG ( ORG sodišče na PERSON ) received the coroner 's certificate ( smrtovnica ) . PERSON was survived by DATE of them , ORG , was also a daughter of the applicant .

On DATE the applicant was given notice of the court 's intention to hold a hearing and an invitation to attend it . The hearing took place on DATE . It appears from the records of the hearing that the applicant participated in the proceedings on her own behalf – as the potential heir – and also represented her juvenile daughter .

The second hearing fixed for DATE was cancelled at the applicant 's request .

At the third hearing , held on DATE , the court stayed the inheritance proceedings and instructed the applicant to institute separate civil proceedings with a view to determining the legal nature of her relationship with S.A.K.

Consequently , on CARDINAL DATE the applicant lodged a claim with ORG , which , due to lack of jurisdiction , referred the case to the competent ORG ( NORP sodišče v GPE ) .

The first hearing , scheduled for DATE , was called off at the request of the applicant . ORG afterwards held CARDINAL hearings DATE and DATE .

DATE and DATE the applicant lodged CARDINAL preliminary written submissions .

At the hearing on DATE the court issued a judgement rejecting the applicant 's claim . The court found that she could not be considered PERSON 's common law partner at the time of his death and thus had no inheritance rights in respect of his estate .

The applicant appealed to ORG ( PERSON sodišče v PERSON ) in DATE . On DATE the court dismissed her appeal . ORG judgment was served on the applicant on an unspecifed day in DATE .

Subsequently , the inheritance proceedings continued before ORG . The latter issued a decree of distribution ( sklep o dedovanju ) on DATE . Relying on the judgments of CARDINAL DATE and DATE ( paragraph CARDINAL above ) , the court did not include the applicant as one of PERSON 's heirs . The decision was served on the parties to the proceedings on DATE .

Section CARDINAL of LAW ( Official Gazette SRS , no . DATE , with amendments , PERSON dedovanju ) provides that inheritance proceedings should begin ex officio as soon as the court learns that somebody has died or has been pronounced dead . In inheritance proceedings the court should establish the heirs , the property which is to be included in the deceased 's estate and the rights of heirs , beneficiaries and others ( section CARDINAL ) .

According to section CARDINAL , after receiving the coroner 's certificate ( a document concerning personal data about the deceased and his estate and information relevant for the inheritance , normally prepared by a registrar – matičar ) , the court examines whether it is competent to hold a hearing and , if not , sends the case to the competent court . According to sections CARDINAL and CARDINAL , the court must hold a hearing if the deceased owned immovable property . It is the court 's obligation to invite those who might be affected to the hearing ( section CARDINAL ) .

The Act on the Protection of the Right to a Trial without undue Delay ( Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja , ORG , No . DATE ) has been implemented since DATE . Under its sections CARDINAL and CARDINAL , the right to a trial within a reasonable time is guaranteed for a party to court proceedings , a participant under the LAW governing non - contentious proceedings and an injured party in criminal proceedings .

“ ( CARDINAL ) In cases where a violation of the right to a trial without undue delay has already ceased and the party had filed a claim for just satisfaction with the international court before the date of implementation of this LAW , the ORG Attorney 's ORG shall offer the party a settlement on the amount of just satisfaction within DATE after the date of receipt of the case referred by the international court for the settlement procedure . The party shall submit a settlement proposal to the ORG Attorney 's ORG within DATE of receipt of the proposal of the ORG Attorney 's ORG . The State Attorney 's Office shall decide on the proposal as soon as possible and within DATE at the latest . ...

( CARDINAL ) If the proposal for settlement referred to in paragraph CARDINAL of this section is not acceded to or ORG and the party fail to negotiate an agreement within DATE after the date on which the party filed its proposal , the party may bring an action before the competent court under this LAW . The party may bring an action within DATE after receiving the ORG Attorney 's ORG reply that the party 's proposal referred to in the previous paragraph was not acceded to , or after the expiry of the period fixed in the previous paragraph for the ORG Attorney 's ORG to decide to proceed with settlement . Irrespective of the type or amount of the claim , the provisions of LAW concerning small claims shall apply in proceedings before a court . ”


The applicant is an NORP limited company , having its registered office in GPE ( GPE ) .

It is represented before the ORG by PERSON PERSON , a lawyer practising in PERSON ( GPE ) .

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

On DATE , the applicant company , acting as a creditor of limited company C. , requested ORG to declare the latter insolvent and wind it up .

On an unspecified date , the investigating judge scheduled the first hearing for DATE .

In a judgment of DATE , ORG declared the limited company C. insolvent .

According to LAW No . CARDINAL of DATE ( hereinafter referred to as the " legge fallimentare " ) , the receiver appointed by ORG may , subject to proof that the other party was aware that the debtor was insolvent , obtain the revocation of every payment of a debt and of every alienation of assets carried out by the debtor in DATE which precedes the formal declaration of insolvency , by means of the so - called " azione revocatoria fallimentare " .


Violation of Art. 5-4;Violation of Art. 6-3-b and 6-3-c;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings

On DATE the Investigating Judge at ORG ( PERSON ) issued a warrant of arrest against the applicant on suspicion of having committed fraud and falsification of documents . The suspicion related to the applicant ’s business activities , and in particular CARDINAL real estate investment projects . ORG issued a search warrant ordering a house search at the LOC of FAC , a private company ( GPE beschränkter PERSON ) for which the applicant acted as general manager . The seizure of documents relating to the real estate investment projects was also ordered . That same day the warrant , search and seizure were executed , the latter in the presence of the Investigating Judge . Later in the day the Investigating Judge questioned the applicant and ordered his detention on remand as he found that there existed a danger of the applicant absconding and collusion . As regards the risk of collusion , the Investigating Judge found that there was the danger that the applicant would attempt to influence the employees of the NORP company and to remove documents which had not been found at the house search .

On DATE the applicant requested his release from detention on remand .

On DATE ORG ( Ratskammer ) of ORG , after an oral hearing in the presence of the applicant , his defence counsel and ORG , dismissed his request . ORG found that no danger of absconding existed . However , the danger of collusion continued to exist as the applicant might try to influence witnesses not yet heard and to remove any traces of the offence . There was also a danger of his committing further offences . On DATE the applicant appealed . At an unspecified date also ORG appealed , arguing that detention on remand should also be based on the risk of the applicant absconding .

Meanwhile , on CARDINAL DATE , ORG ordered that the applicant ’s contacts with his defence counsel should take place under the surveillance of the court because of the existence of a danger of collusion . The Investigating Judge found that this measure was necessary because co - suspects were still at large , several witnesses had not yet been heard and there was a risk that the applicant could influence them . The Investigating Judge stated that the validity of this order would expire at the latest when the DATE statutory time - limit for detention on remand based on the risk of collusion would end . The applicant appealed against this decision . He submitted that he did not oppose this measure in principle , however , the measure constituted an unnecessary limitation on his defence rights and the Investigating Judge had failed to order this measure within DATE as prescribed by law .

On DATE ORG dismissed the applicant ’s appeal against ORG search warrant and the order for surveillance of the applicant ’s contacts with his defence counsel . As regards the complaint about the surveillance of the applicant ’s contacts with counsel , ORG found the Investigating Judge ’s decision to be correct . This order did not involve any criticism of counsel or any reproach of conduct contrary to law or the disciplinary rules of the members of the bar , but merely had the purpose of preventing any contact whatsoever with third persons in order not to endanger the success of the criminal investigation . The present case concerned the complicated business relations of the LAW and several other companies managed by the applicant , and the flow of money between them . Further witnesses could only be identified after all the documents seized had been examined and the applicant was to be prevented from influencing them . Furthermore , the decision had been taken within the time limit prescribed by LAW of LAW . ORG also found the applicant ’s complaint that he did not have sufficient access to his case - file unfounded . The Investigating Judge had granted access to the file to the official receiver of the ORG company and the applicant ’s defence counsel , the latter also being given the possibility to make copies of the documents in the file . The applicant ’s counsel visited him repeatedly and could have given him copies if he so wished . Moreover , when questioned by ORG , the applicant was informed of the contents of the file and about the statements of witnesses already heard .

On DATE the ORG commented on the applicant ’s appeal of DATE . These comments were not served on the applicant .

On DATE the ORG ( Oberlandesgericht ) dismissed the appeal lodged by the applicant but granted ORG appeal . It found that a serious suspicion existed against the applicant and referred to the details of the criminal investigation . There also existed a danger that the applicant would abscond .

On DATE ORG , after having held an oral hearing , dismissed a further request of the applicant for release . On CARDINAL DATE ORG dismissed the applicant ’s appeal . On DATE ORG dismissed a further request for release by the applicant .

After his conviction on DATE , the applicant filed further requests for release from detention on remand . Such requests were refused by ORG on DATE and DATE . Appeals were dismissed by ORG on DATE and CARDINAL DATE respectively .

On DATE the ORG filed a bill of indictment against the applicant charging him with aggravated fraud .

On DATE the trial against the applicant started before ORG . It lasted until DATE . In the course of the trial ORG heard DATE witnesses , some of them repeatedly on the applicant ’s request . Furthermore CARDINAL experts on book - keeping , building and construction matters , real estate assessment , medicine and psychiatry were heard . The applicant frequently requested that the trial be adjourned for lengthy periods and , towards the end of the trial , requested that the trial be repeated or that the case be remitted to the Investigating Judge . On DATE the court convicted the applicant of aggravated fraud and sentenced him to CARDINAL half years’ imprisonment . It also acquitted the applicant of an additional charge of fraud raised by ORG at the trial .

On DATE the judgment of CARDINAL pages and the transcript of the trial of CARDINAL pages were served on the parties .

On DATE ORG filed a plea of nullity and appeal against that part of the sentence concerning the applicant ’s acquittal . On DATE the applicant filed a plea of nullity and appeal .

On DATE the applicant commented on the plea of nullity lodged by ORG . Since he claimed that until the expiration of the time - limit for filing his plea of nullity the defence had had insufficient possibilities to inspect the file , ORG , on DATE , decided that the applicant should be granted a new time- limit for filing his plea of nullity and appeal .

On DATE the applicant again filed a plea of nullity and an appeal against sentence . The writ repeated in substance the arguments raised earlier .

On DATE the ORG withdrew the plea of nullity .

On DATE the Procurator General ( ORG ) submitted the following comments on the applicant ’s plea of nullity :

" In the view of the Procurator General the plea of nullity of the accused PERSON can be dealt with under LAW of LAW . The transmission of a decision is requested . The plea of nullity lodged by ORG has been withdrawn by the attached declaration of DATE . "

On DATE ORG , sitting in camera , rejected as inadmissible the applicant ’s plea of nullity .

On an unspecified date , ORG submitted written comments on the applicant ’s appeal .

On DATE the ORG , after an oral hearing in which the applicant and his defence counsel participated , granted ORG appeal against the applicant ’s sentence and increased it to DATE imprisonment . In weighing the mitigating and aggravating circumstances , the court found that a higher sentence was called for .

The following account of the relevant provisions of LAW ( GPE ) is based on the law in force until DATE .

According to S. CARDINAL § CARDINAL of the Code of Criminal Procedure , ORG at ORG supervises all measures taken by ORG in the course of preliminary investigations .

According to PERSON § CARDINAL a person remanded in custody may meet his defence counsel in the absence of ORG . However , if detention on remand has been ordered on the ground of a danger of collusion , the Investigating Judge may , during DATE of the detention , be present when the remand prisoner meets his defence counsel . If due to specific circumstances a danger exists that contact with defence counsel may interfere with evidence , the Investigating Judge may order the extension of such surveillance until the bill of indictment is served . Surveillance of contact with defence counsel may only be exercised as long as the detention on remand is based on a danger of collusion ( ORG . CARDINAL and CARDINAL § CARDINAL ) .

Under LAW CARDINAL and CARDINAL , a person may be held in detention on remand if he is seriously suspected of having committed a criminal offence and if there is a risk of his absconding , of collusion , or that the person might commit further offences . According to S. CARDINAL , detention may not last DATE where its sole justification is the risk of collusion ; it may not last DATE where CARDINAL of the other grounds is relied upon . ORG may , however , extend detention if so requested by the Investigating Judge or ORG , and if the difficulty or the scope of the investigation makes it necessary . In such cases the maximum duration of detention is DATE where the measure is based on a risk of collusion alone , and DATE if the term of imprisonment which the suspect risks is DATE or more , for the other grounds .

By virtue of ORG . CARDINAL and CARDINAL , it is open to the suspect to apply for release at any time . Such an application and any appeal against a decision ordering detention on remand must be examined by ORG at a private hearing in the presence of the accused or his defence counsel . According to S. CARDINAL , there is a further appeal against decisions of ORG to ORG .

Under LAW ( d ) § CARDINAL a plea of nullity may be rejected by ORG after deliberations in private if the court unanimously finds that the complaint should be dismissed as being manifestly ill - founded without any need for further deliberations .


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

The applicant was born in DATE and lives in GPE .

On DATE the applicant sued CARDINAL professors from ORG ( ORG ) before ORG ( PERSON ) alleging professional misconduct on their part and seeking protection of his personal rights . He submitted that the professors had deliberately made him fail his DATE of studies . They allegedly prohibited him from participation in lectures and the examinations . In this respect he claimed ORG MONEY in compensation from the professors and PLN MONEY from the University .

On DATE the applicant submitted information concerning his financial situation . He maintained that he received a family pension in the amount of PLN CARDINAL . He further stressed that he was a student , that he did not work and that he had incurred huge debts on his bank account ( MONEY ) .

On DATE ORG asked the applicant to submit a copy of his bank statement and the contract for the purchase of his car . In reply , on DATE the applicant sent a letter to the court , claiming that his debts amounted to ORG . However , he could not ask the bank for a statement because the bank would have discovered his debts . He was also not able to submit the contract for the purchase of his car ( Renault Clio ) as it had been bought with his mother ’s money .

On DATE ORG refused to exempt the applicant from the payment of court fees . The court held that the applicant had failed to submit evidence i.e. his bank statement in support of his allegations that he had substantial debts . According to the court , the fact that the applicant owned a ORG Clio was an indication that his financial situation was sound . The court stressed that it was impossible to cover the costs of the car maintenance with the applicant ’s pension .

On DATE the applicant lodged an interlocutory appeal . He stressed that the court fee for lodging his claim exceeded ORG CARDINAL , which he was unable to pay . He further maintained that he did not own any real estate and that he rented his apartment under the rent - control scheme . Moreover , he was not even able to pay the reduced rent and he already owed ORG to the housing co - operative . He further claimed that the fact that he owned a car was of no relevance as he had bought it DATE when his financial situation had been better , given that he had had a part - time job at the time . He did not have a copy of the contract for the purchase of the car . However , he maintained that he had bought a new car and had paid ORG CARDINAL for it .

On DATE ORG again refused the applicant ’s request . The court stressed that the fact that the applicant owned a car worth ORG MONEY and at the same time his only income was a family pension of ORG CARDINAL indicated that his financial situation was good and that he must have had some hidden resources . Otherwise , he would not be able to support himself and to maintain his car . According to the court , the applicant was trying to conceal his real financial situation .

On DATE the applicant lodged an interlocutory appeal against this decision . He claimed that the court ’s refusal to exempt him amounted to a violation of his right of access to a court .

On DATE ORG dismissed the applicant ’s interlocutory appeal . The court held that a person applying for legal aid should not take out a loan in a situation when he still had assets ( a car ) . In addition , the applicant had failed to provide a detailed statement about his financial situation .

On DATE ORG ordered the applicant to pay ORG MONEY as a fee for lodging his statement of claim on pain of having his claim returned .

On DATE the applicant again asked to be exempted from the court fees . He claimed that he was unable to pay that amount . He owed PLN CARDINAL to the bank and had no savings . In addition , his claim related to the protection of personal rights . As regards his car , he could not sell it since a different set of civil proceedings concerning it was pending . Lastly , he maintained that apart from the family pension - PLN CARDINAL - he did not have any other income . He had no possessions and the car was his only asset .

On DATE ORG refused the applicant ’s request . The court held that the applicant should have sold his car in order to obtain money for court fees .

On DATE the applicant again lodged an interlocutory appeal against this decision . The applicant repeated his earlier arguments and referred to the right of access to a court .

On DATE ORG gave a decision and exempted the applicant from PERCENT of the court fees for lodging his statement of claim . The court found that the court fee in the amount of ORG CARDINAL,CARDINAL constituted a limitation on the applicant ’s right of access to a court and that the amount had to be reduced . At the same time , it held that a court fee in the amount of MONEY could not be considered excessive for the applicant .

On DATE the applicant again made an interlocutory appeal and submitted that ORG CARDINAL,CARDINAL was too much and he was unable to pay it .

On DATE ORG refused to grant the applicant any further exemption from court fees . Upon the applicant ’s further appeal , ORG upheld the decision on DATE . The court held that the applicant had not submitted any new arguments which would have justified a further exemption from court fees .

On DATE ORG ordered the applicant to pay a court fee of ORG MONEY for lodging his statement of claim on pain of having the claim returned .

On DATE the applicant lodged yet another motion for an exemption from court fees . He stated among other things that he had lost the right to a family pension .

On DATE ORG returned the statement of claim to the applicant as he had failed to pay the required court fee . On DATE ORG quashed the decision to return the statement of claim to the applicant . On DATE it dismissed the applicant ’s motion for an exemption . It held that there were no new circumstances which would argue in favour of allowing the applicant ’s request . The applicant appealed to ORG .

On CARDINAL DATE ORG dismissed the applicant ’s interlocutory appeal . The court held that the applicant had already been exempted from the greater part of the fees due in his case ( PERCENT ) and that he only had to pay ORG MONEY . Furthermore , despite his allegedly bad financial situation , the applicant had been able to maintain a car . The court acknowledged that the car was the subject of enforcement proceedings . However , since the applicant had not been able over a DATE period to set aside the sum required for court fees , his application for an exemption had to be dismissed .

On DATE ORG returned the statement of claim to the applicant since he had failed to pay the required court fee . The applicant appealed .

On DATE the court ordered the applicant to pay the court fee of PLN CARDINAL for lodging an interlocutory appeal . On DATE the applicant asked to be exempted from payment of this fee .

On DATE the court asked the applicant to submit a detailed statement about his financial situation .

On DATE ORG exempted the applicant from the fee for lodging his interlocutory appeal .

On DATE ORG dismissed the applicant ’s interlocutory appeal against the decision to return the statement of claim to him .

The legal provisions applicable at the material time and questions of practice are set out in paragraphs CARDINAL of the judgment delivered by ORG on DATE in the case of PERSON v. GPE ( no . CARDINAL/CARDINAL , ORG CARDINAL-VI ; see also PERSON and GPE v. GPE , no . GPE , § § CARDINAL ) .


Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - financial award

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

In DATE the applicant instituted proceedings in the ORG of PERSON ( the “ ORG ” ) against ORG , seeking the recovery of salary arrears .

On DATE the court found for the applicant and ordered the entity to pay him ORG CARDINAL ( around CARDINAL euros – “ EUR ” ) .

On DATE GPE of PERSON instituted enforcement proceedings .

On DATE ORG informed the applicant that the judgment was not enforced due to the large number of enforcement proceedings against the debtor and its lack of funds .

On DATE ORG applied to ORG to have the debtor in the enforcement proceedings replaced , as the latter ’s property had been transferred to ORG ( the “ DHME ” ) pursuant to the decision of ORG .

On DATE the court granted the request of ORG and ruled that the ORG was responsible for the payment of the judgment debt of DATE to the applicant .

On DATE the ORG transferred the amount of the award to the deposit account of ORG .

On DATE ORG requested the applicant to provide them with his bank account details in order that they transfer the amount of the award .

According to the ORG , the applicant failed to provide the Bailiffs with the information requested .

The applicant did not contest this submission .

The relevant domestic law is summarised in the judgment of ORG v. GPE ( no . CARDINAL , § § DATE , DATE ) .


David Thór Björgvinsson;Ján Šikuta;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE . He is currently detained at GPE , GPE .

At TIME on DATE the applicant was seen by police driving a ORG CARDINAL car along LOC , GPE , GPE with a second person , PERSON , in the front passenger seat . Police officers followed the car and saw items being thrown from it . These were subsequently recovered and found to be firearms . The car was stopped and searched . CARDINAL black balaclavas , dark woollen gloves and CARDINAL round of ammunition were found in the car , together with a blue plastic container containing petrol .

The applicant 's case was that he had simply given PERSON a lift and that he knew nothing about the articles that he had brought into the car . Following his arrest , the applicant was interviewed by police . He was shown a number of the items that had been found in the ORG car and he said that , apart from the blue plastic container , he had never seen them before . He told police that at TIME of his arrest , he had been asked by PERSON to take him to GPE , GPE . He claimed that he had initially refused , telling PERSON that every time he left the house , “ the police were on to ” him . He was persuaded by PERSON , however , and they went to the car , PERSON carrying a bag that the applicant was unable to describe . As they were driving to GPE they were intercepted by police cars . The applicant asserted that he had been entrapped . He was sure that someone had sent PERSON to his home with the guns because he had no doubt that the police did not arrive by chance to stop his car .

The applicant was arraigned on DATE and pleaded not guilty to CARDINAL count of possession of firearms and ammunition with intent and CARDINAL count of possessions of articles for a purpose connected with terrorism . A defence statement was served on his behalf on DATE . It contained the following :

“ The defendant believes that he may have been entrapped by a person known to him working with the police either for the purpose of incriminating this defendant or his co - defendant . In consequence he requires disclosure of all information and material touching upon this issue and informing the state of knowledge of the police prior to the stopping and arrest of the defendant and all such material shall be disclosed because failure to do so would mean unfairness to the defendant and would be in breach of LAW . ”

On DATE , the prosecution informed the applicant that it would apply ex parte for an order preventing disclosure . In non - jury trials in GPE , such an application is made to a judge other than the trial judge . That judge is designated by the Lord Chief Justice of GPE and is referred to as the “ disclosure judge ” ( see domestic law and practice below ) .

The applicant opposed the ex parte hearing of the prosecution 's application by the disclosure judge . Having heard argument from counsel for the applicant and the prosecution , inter alia on the compatibility of an ex parte hearing with LAW and the relevant case - law of ORG , the disclosure judge , in an ex tempore judgment , found that it was proper to hear the application ex parte . He stated that while this ORG 's case - law suggested that ex parte applications without any notice to the defence were problematic , the present case was an ex parte application with notice . He stated :

“ ... ORG has certainly not forbidden that procedure . It does n't seem to me that I would be empowered to overrule the [ relevant domestic legislation ] on the basis of the findings of ORG up to the moment , but the ORG will do if this case reaches it , maybe another matter , but I would propose to hear the [ prosecution 's ] application at present . ”

On DATE , the disclosure judge allowed the prosecution 's application for non - disclosure . He outlined this ORG 's judgments in PERSON and PERSON v. the GPE [ ORG ] , no . CARDINAL , § § CARDINAL , ORG CARDINALII and PERSON v. GPE [ ORG ] , no . CARDINAL , DATE and continued :

“ ... I have to consider , in the light of the defence of entrapment advanced on behalf of the accused , whether the material which is the subject of the application is such that it might be of assistance to the defence or in any way undermines any part of the prosecution case ; whether in those circumstances it is necessary in the public interest to order non - disclosure and further , if disclosure is not to be provided , what steps are appropriate to protect the interests of the accused and ensure the fairness of the trial .

My reason for conducting an ex parte hearing are as follows : in order to determine whether the material is such that the public interest requires its non - disclosure I must see the material and consider the evidence and arguments submitted by the prosecutor , and I must do so in the absence of the defendants and their representatives to protect the public interest until that decision is made .

There was considerable debate in [ Rowe and PERSON ] about the best way to deal procedurally with this situation . The majority took the view that it was important for the trial judge to see the material personally .

That is certainly true if the material is not prejudicial to the accused and where the trial is before a judge and jury the effect of the judge seeing even prejudicial material may not be inconsistent with the fairness of the trial process .

However , in the case [ of ] a non - jury trial it is obviously undesirable that prejudicial material which is not going to be part of the evidence in the case should be seen by the judge who will be tribunal of fact , especially if it is not disclosed to the defence .

No procedure exists to ensure that an assessment of the possible value to the defence of such material other than by the prosecutor or at his request the trial judge can be made in the light of the evidence at the trial . We do not have “ special counsel ” to carry out such an exercise .

In general the ORG has to rely on the judgment and integrity of the prosecutor , who can monitor the issue of whether disclosure of such material to the trial judge may become necessary in the interests of justice .

The considerations I applied in considering the prosecution 's application were :

If it is compatible with the public interest then all relevant material should be disclosed ;

All of the material for which non - disclosure is ordered and which is not prejudicial to the defendant should be available to the trial judge ;

The prosecutor should monitor the continuing non - disclosure of potentially prejudicial material .

In considering that matter it may be possible for the prosecutor to give some indication of the nature of the material to the defendant 's advisors without disclosing that which it requires to keep secret so as to allow the latter to decide whether the material should be disclosed or not . ”

He concluded :

“ Having considered the matter ex parte , I have decided that in the light of the defence statement none of the material which is the subject of the application before me is such that it might reasonably be expected to undermine the case for the prosecution or to assist the accused 's defence . On the evidence before me I do not anticipate any circumstances which would result in the material becoming of value to the defence . I consider that it is not in the public interest to disclose the material and have ordered accordingly . I have prepared a statement of the reasons for my decision which shall remain confidential to the prosecutor and the trial judge . ”

When the case next came before the trial judge on CARDINAL and DATE , the applicant and his co - accused sought an adjournment of the proceedings . The trial judge indicated that he had not received the disclosure judge 's ruling or the statement of reasons and did not intend to receive anything that had not been made available to the defence . He then consulted the disclosure judge who indicated that he was content that the trial judge did not see the reasons and did not require him to do so . The trial judge then suggested that CARDINAL way of proceeding would be to appoint special counsel who would be shown the material and remain throughout the trial .

A hearing took place on DATE to allow the parties and counsel appearing for the Attorney - General made submissions as to whether it was appropriate either for special counsel to be appointed or for the trial judge himself to consider the undisclosed material . At that hearing , the trial judge indicated that he had by then read the ruling of the disclosure judge and the statement of reasons for his decision . The trial judge said that he considered that it was in the interests of justice that he should see the statement of reasons when the disclosure judge , in his ruling of CARDINAL DATE , had suggested that he should . He also stated that the statement of reasons referred to “ certain items which could not in [ the disclosure judge 's ] view prejudice the defence in any way if they were seen by me [ the trial judge ] , but he also said that there were items which were capable of having a prejudicial effect on the trial if seen by the trial judge . ” He stressed that he had not himself seen the material seen by the disclosure judge .

The trial judge then heard submissions from the defence , prosecution and counsel for the Attorney - General . The latter argued that the question of disclosure should be referred back to the disclosure judge for his decision . Counsel for the applicant 's co - accused also suggested that the trial judge recuse himself since he had seen the statement of reasons which had not been made available to the defence . The trial judge ruled that it was not appropriate for him to recuse himself . He explained that he had reconsidered his decision not to read the statement of reasons ; he had come to the view that it was important for him to read the statement of reasons in case there was something in it which would be of relevance to his decision on whether to appoint special counsel or to read the undisclosed material himself . He added :

“ The fact that a judge had seen a document in a non - jury trial which has not been seen by the defence does not of necessity mean that the trial is made unfair or becomes unfair and , having seen the document and read it , I am absolutely satisfied that it does not create any reason why I should no longer act as the trial judge in this case . ”

The trial judge also found that the disclosure judge was best equipped to know what procedural safeguards could be put in place as to the non - disclosed material , including whether it was appropriate to appoint special counsel , since he knew the nature of that material . He therefore referred the matter back to the disclosure judge .

The matter came before the disclosure judge on DATE . In an ex tempore judgment he ruled :

“ There is no further safeguard that I am aware of that would be of any assistance , that one could conceive would be of any assistance at this stage , and I would not regard the case as requiring the appointment of special counsel ...

The present reality is that I can not foresee any circumstance in which the undisclosed material , that is the material undisclosed to the trial judge , would be of assistance to the defence . But it may be that the defence may advance a proposition or raise an issue that might by remote possibility make that so , and I think if the ORG concedes that that is the position then the ORG should make the matter known to the trial judge and consideration could be given then to referring back to me . ”

The disclosure judge said there were CARDINAL types of material involved . The first could not assist the applicant because it was adverse to him . The second related to police procedures , was general in nature and content , and did not relate directly to the applicant .

At the applicant 's trial it was established that QUANTITY police officers , in QUANTITY cars , were on patrol in the general area of GPE and GPE at the time the car was intercepted . Those police officers who had attended a briefing at FAC said that they were told that there was intelligence that loyalist paramilitaries were in possession of a firearm in the GPE / GPE area . CARDINAL crew had travelled from GPE , and they said they did not arrive in time for the briefing but they were told by radio that loyalist paramilitaries had obtained access to weapons . It emerged during cross - examination , based on logs obtained on disclosure , that at TIME a message was sent to control to the following effect :

“ ... a vehicle acting suspiciously at GPE , VRM - DDZ CARDINAL , blue / green ORG CARDINAL . ”

The information passed by control to the CARDINAL patrol cars was recorded as :

“ ... blue / green ORG car acting suspiciously in the GPE area . ”

No reference was made to the registration number , or “ GPE in the controller 's message to the patrols . The case made on behalf of the applicant at trial was that the reason that the controller did not pass to those on the ground the registration number of the ORG and information as to the place where it was last seen , was that this was an operation in which police were already in position waiting for the applicant 's car to appear . All police officers to whom this suggestion was made denied it .

On DATE , during the cross - examination of CARDINAL police officer , counsel for the applicant also argued that , in order to advance the defence of entrapment , further disclosure was required . The trial judge replied :

“ Counsel for the prosecution has heard what you have got to say . If he feels that there is information that would assist you I have no doubt he will go back to [ the disclosure judge ] and ask him about it , but beyond that I ca n't go . ”

At the conclusion of the case for the prosecution the trial judge was invited to rule that there was no case for the applicant to answer and to stay the proceedings on the grounds of entrapment . The trial judge rejected both applications . As to the former , he concluded that the circumstantial evidence was such that a jury properly directed could be satisfied , to the requisite standard of proof , that the applicant was in voluntary possession by actual or potential control of the items that were in the car when the police began their pursuit with knowledge of what was kept or controlled . There was a clear inference to be drawn that from the nature of the items that were thrown from the car and those that were found in it after it came to a halt that the applicant was in possession of the firearms in connection with terrorist activities .

As to the latter , after referring to the case of PERSON ( see paragraph CARDINAL below ) , the trial judge ruled :

“ Although , as was suggested in cross examination the police may have been in possession of more information than was revealed at the trial I did not find any evidence to suggest that the conduct of the police could in any way affront the public conscience and I therefore declined to stay the proceedings . ”

When the trial resumed , the applicant did not give evidence and no other evidence was called on behalf of the defence . On DATE the applicant was convicted by the trial judge , without a jury , of CARDINAL offences : possession of firearms and ammunition with intent , contrary to LAW ( NI ) Order DATE ; and possession of articles for a purpose connected with terrorism , contrary to section CARDINAL ) of GPE ( Emergency LAW DATE . The trial judge found that taking the circumstantial evidence and the inferences to be drawn from it and , using as support adverse inferences to be drawn from the applicant 's silence when questioned by the police and his failure to give evidence , he was satisfied of the applicant 's guilt of the CARDINAL offences beyond reasonable doubt .

The applicant was sentenced to concurrent terms of imprisonment of DATE and DATE respectively . His co - accused , PERSON , had pleaded guilty on DATE of the trial and was sentenced to DATE imprisonment for the offence of possession of firearms and ammunition with intent and to DATE imprisonment concurrent for the offence of having articles for a purpose connected with terrorism .

The applicant appealed against his conviction on both charges . On DATE , ORG in GPE unanimously dismissed the appeal . The non - disclosed material was not considered by ORG before it gave judgment . Instead , it considered ORG ruling in PERSON [ CARDINAL ] GPE CARDINAL ( see paragraph CARDINAL below ) and reviewed this ORG 's judgments in PERSON and PERSON and PERSON , both cited above ; PERSON v. the GPE [ ORG ] , no . ORG , ORG CARDINALII ; PERSON and PERSON v. the GPE , nos . ORG and ORG , DATE and LOC v. GPE , no . CARDINAL/CARDINAL , ORG CARDINALVII .

In respect of PERSON and PERSON , having quoted paragraphs CARDINAL of the ORG 's judgment , ORG observed :

“ The fact specific nature of the cases is apparent from these passages . The trial judges had to deal directly with the defence of entrapment and the material produced to them may well have sounded on that issue . Moreover there was plainly prejudicial material in the evidence that the judges saw but which was denied to the defence . Not only were the defence put at a disadvantage because they could not contribute to the assessment that the judges were making but , in PERSON ' case , prejudicial material was put before the judge as well . ”

It went on to state that from the relevant case - law of this ORG the following principles could be recognised :

“ Full disclosure of any material held by the prosecution which weakens the prosecution case or strengthens that of the defendant should be made .

Minimum derogation from this golden rule is permissible where full adherence would create risk of serious prejudice to an important public interest .

The judge dealing with an application for non - disclosure must have a full understanding and appreciation on an ongoing basis of all the issues in the trial and in particular the nature of the defence .

The appointment of special counsel will always be exceptional . It should not be ordered unless the trial judge is satisfied that no other course will adequately meet the over - riding requirements of fairness to the defendant . ”

In applying those principles to the applicant 's case , it found that the applicant 's defence of entrapment was well known to the trial judge , the prosecution , and the disclosure judge and no other issue had been identified that might sound on the question of disclosure . The disclosure judge had been unable to envisage any circumstances in which the non - disclosed material could assist the defence either by enhancing the case that was being made for the applicant or by undermining or weakening the prosecution case . Furthermore , it agreed with the disclosure judge that there had been no need for special counsel to be appointed and there was nothing to indicate that the material characterised by the disclosure judge as wholly irrelevant to the applicant 's defence might have suddenly become relevant . It rejected the applicant 's contention that the disclosure judge should have obtained a DATE transcript of the trial and examined it for any sign of material that might have assisted the applicant 's case ; this was not a case where a DATE transcript would have been warranted as no new line of defence ever emerged that might have prompted a reconsideration of the disclosure judge 's decision that the material did not assist the applicant .

On the availability of the disclosure judge 's statement of reasons to the trial judge , ORG found :

“ The trial judge did not read the statement of reasons given by the disclosure judge before the first hearing on the question of disclosure . The circumstances in which he considered these before the second hearing on this issue are not entirely clear . In general , where material is not to be released to a defendant , it will be inappropriate for the trial judge in a non - jury case to see it . In the present case the trial judge made clear that he had not seen any material that was adverse to the [ applicant ] and [ counsel for the applicant ] did not dispute this statement . In the particular circumstances of the present case , therefore , the trial judge 's consideration of this material has not brought about any unfairness to the appellant and we do not consider that this rendered his conviction in any way unsafe . ”

ORG further rejected the applicant 's argument that the trial judge had given insufficient weight to the entrapment theory . ORG noted that it had been the central plank of the applicant 's defence and had been thoroughly explored not only in cross - examination of the witnesses but in extensive canvassing of the various “ coincidences ” relied on by the applicant : the trial judge had had the advantage of hearing the witnesses give evidence about these matters and had the opportunity to assess them as they gave their explanations as to the circumstances in which they came to be involved with the applicant .

After dismissing the appeal , ORG , on DATE , also refused to certify a point of law of general importance or grant leave to appeal to ORG .

In GPE , under section CARDINAL of LAW , trials on indictment can be conducted by so - called “ PERSON courts ” ( courts without a jury ) if the indictment is for a “ scheduled offence ” ( CARDINAL of the offences listed in Schedule CARDINAL to the same Act ) . The trial then takes place before a judge sitting alone who hears all the evidence and reaches a verdict . He or she is also responsible for conducting the trial and pronouncing sentence if the defendant is found guilty . The judge must give a reasoned verdict if he convicting the defendant .

Disclosure in criminal cases is regulated by Part CARDINAL of the Criminal Procedure and Investigations Act DATE ( “ the DATE LAW ) and ORG ( Disclosure ) Rules ( GPE ) DATE ( “ the DATE Rules ” ) .

Section CARDINAL of the CARDINAL Act regulates primary disclosure by the prosecution . ORG ) provides that the prosecution must disclose to the defence any material which , in the opinion of the prosecutor , might undermine the prosecution case against the accused . Primary disclosure is followed , where appropriate , by the accused providing a defence statement under section CARDINAL(CARDINAL ) . This triggers secondary disclosure by the prosecution under LAW ) which provides that the prosecutor must disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might be reasonably expected to assist the accused 's defence as disclosed by the defence statement .

Section CARDINAL of the DATE Act allows the accused to apply to the court for an order that the prosecutor provide undisclosed material . Section CARDINAL(CARDINAL ) requires the prosecutor to keep under review whether disclosure is required .

Sections CARDINAL(CARDINAL ) , CARDINAL(CARDINAL ) , CARDINAL(CARDINAL ) and CARDINAL(CARDINAL ) of LAW provide that material must not be disclosed under the foregoing provisions to the extent that the court , on an application by the prosecutor , concludes it is not in the public interest to disclose it .

Section CARDINALA ( covering procedures for trial on indictment for scheduled offences ) provides that the accused may apply to the court to review its decision to order non - disclosure on grounds of public interest . Under LAW ( which applies to trials conducted before a judge and jury ) where a court has made a non - disclosure order it must keep under review the question whether it is still not in the public interest to disclose material affected by its order . It must do so without the need for an application but the accused may apply to the court for a review of that question .

Rule CARDINAL of the DATE Rules regulates an application made under section CARDINAL(CARDINAL ) , CARDINAL(CARDINAL ) , CARDINAL ) or CARDINAL(CARDINAL ) of LAW . There are CARDINAL types of application under LAW :

( a ) An application by the prosecutor to the judge , to be determined at an inter partes hearing . The accused receives notice of the application and details of the nature of the material to which the application relates .

( b ) An ex parte application by the prosecutor to the judge , of which notice is given to the accused . The accused does not receive information on the nature of the material to which the application relates .

( c ) An ex parte application by the prosecutor to the judge of which the accused receives no notice .

The application in the present case was of the kind described in ( b ) above .

Under Rule CARDINAL(CARDINAL)(a ) , where the offence in question is a scheduled offence ( and thus to be tried by a court without a jury ) the application shall be heard by a judge designated by the Lord Chief Justice ( known as “ the disclosure judge ” ) . Rule CARDINAL(CARDINAL ) provides that where an application is made under Rule CARDINAL(CARDINAL ) the hearing shall be ex parte and only the prosecutor shall be entitled to make representations to the court . By Rule PERSON ) the court ( the disclosure judge ) is obliged to state reasons for making an order and a record of that statement must be made . Under Rule CARDINAL(CARDINAL ) where a hearing is held in private the court may specify conditions governing the keeping of the record of its statement of reasons made in pursuance of Rule PERSON ) .

In respect of applications by the defence made under sections CARDINAL and DATE , Rule CARDINAL provides that they shall be inter partes and the accused and the prosecutor shall be entitled to make representations to the court . However , under Rule CARDINAL(CARDINAL ) , the prosecution can apply to the court for leave to make representations in the absence of the accused ; the court may for that purpose sit in the absence of the accused and his legal representative .

The relevant domestic law and practice on the appointment of special counsel ( also known as special advocates ) are set out in PERSON and PERSON v. the GPE [ ORG ] , ORG . ORG and ORG , ORG CARDINALX at paragraphs CARDINAL - CARDINAL .

PERSON ORG considered the compatibility of applications for non - disclosure on grounds of public interest immunity . It held that procedures for dealing with such applications would not be in violation of LAW provided they were operated with “ scrupulous attention ” to certain governing principles and with continuing regard to the proper interests of the defendant . The governing principles were as follows :

“ CARDINAL . If material does not weaken the prosecution case or strengthen that of the defendant , there is no requirement to disclose it . For this purpose the parties ' respective cases should not be restrictively analysed . But they must be carefully analysed , to ascertain the specific facts the prosecution seek to establish and the specific grounds on which the charges are resisted . The trial process is not well served if the defence are permitted to make general and unspecified allegations and then seek far - reaching disclosure in the hope that material may turn up to make them good . Neutral material or material damaging to the defendant need not be disclosed and should not be brought to the attention of the court . Only in truly borderline cases should the prosecution seek a judicial ruling on the disclosability of material in its hands . If the material contains information which the prosecution would prefer that the defendant did not have , on forensic as opposed to public interest grounds , that will suggest that the material is disclosable . If the disclosure test is faithfully applied , the occasions on which a judge will be obliged to recuse himself because he has been privately shown material damning to the defendant will , as ORG envisaged ( DATE and CARDINAL(v ) ) , be very exceptional indeed .

When any issue of derogation from the golden rule of full disclosure comes before it , the court must address a series of questions :

( CARDINAL ) What is the material which the prosecution seek to withhold ? This must be considered by the court in detail .

( CARDINAL ) Is the material such as may weaken the prosecution case or strengthen that of the defence ? If No , disclosure should not be ordered . If Yes , full disclosure should ( subject to ( CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) below be ordered .

( CARDINAL ) Is there a real risk of serious prejudice to an important public interest ( and , if so , what ) if full disclosure of the material is ordered ? If No , full disclosure should be ordered .

( CARDINAL ) If the answer to ( CARDINAL ) and ( CARDINAL ) is Yes , can the defendant 's interest be protected without disclosure or disclosure be ordered to an extent or in a way which will give adequate protection to the public interest in question and also afford adequate protection to the interests of the defence ?

This question requires the court to consider , with specific reference to the material which the prosecution seek to withhold and the facts of the case and the defence as disclosed , whether the prosecution should formally admit what the defence seek to establish or whether disclosure short of full disclosure may be ordered . This may be done in appropriate cases by the preparation of summaries or extracts of evidence , or the provision of documents in an edited or anonymised form , provided the documents supplied are in each instance approved by the judge . In appropriate cases the appointment of special counsel may be a necessary step to ensure that the contentions of the prosecution are tested and the interests of the defendant protected ( see paragraph CARDINAL above ) . In cases of exceptional difficulty the court may require the appointment of special counsel to ensure a correct answer to questions ( CARDINAL ) and ( CARDINAL ) as well as ( CARDINAL ) .

( CARDINAL ) Do the measures proposed in answer to ( CARDINAL ) represent the minimum derogation necessary to protect the public interest in question ? If No , the court should order such greater disclosure as will represent the minimum derogation from the golden rule of full disclosure .

( CARDINAL ) If limited disclosure is ordered pursuant to ( CARDINAL ) or ( CARDINAL ) , may the effect be to render the trial process , viewed as a whole , unfair to the defendant ? If Yes , then fuller disclosure should be ordered even if this leads or may lead the prosecution to discontinue the proceedings so as to avoid having to make disclosure .

( CARDINAL ) If the answer to ( CARDINAL ) when first given is No , does that remain the correct answer as the trial unfolds , evidence is adduced and the defence advanced ?

It is important that the answer to ( CARDINAL ) should not be treated as a final , once - and - for - all , answer but as a provisional answer which the court must keep under review .

Throughout his or her consideration of any disclosure issue the trial judge must bear constantly in mind the overriding principles referred to in this opinion . In applying them , the judge should involve the defence to the maximum extent possible without disclosing that which the general interest requires to be protected but taking full account of the specific defence which is relied on . There will be very few cases indeed in which some measure of disclosure to the defence will not be possible , even if this is confined to the fact that an ex parte application is to be made . If even that information is withheld and if the material to be withheld is of significant help to the defendant , there must be a very serious question whether the prosecution should proceed , since special counsel , even if appointed , can not then receive any instructions from the defence at all . ”

The fact that a defendant would not have committed an offence were it not for the activity of an undercover police officer or an informer acting on police instructions does not provide a defence under LANGUAGE law . The judge does , however , have a discretion to order a stay of a prosecution where it appears that entrapment has occurred , as ORG affirmed in PERSON ; Attorney - General 's Reference ( no . CARDINAL of DATE ) ( [ DATE ] ORG DATE ) . In GPE , Lord PERSON of GPE explained ( § CARDINAL ) :

“ My ORG , every court has an inherent power and duty to prevent abuse of its process . This is a fundamental principle of the rule of law . By recourse to this principle courts ensure that executive agents of the ORG do not misuse the coercive , law - enforcement functions of the courts and thereby oppress citizens of the ORG . Entrapment ... is an instance where such misuse may occur . It is simply not acceptable that the ORG through its agents should lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so . That would be entrapment . That would be a misuse of ORG power , and an abuse of the process of the courts . The unattractive consequences , frightening and sinister in extreme cases , which ORG conduct of this nature could have are obvious . The role of the courts is to stand between the ORG and its citizens and make sure this does not happen . ”


Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - State to pay outstanding judgment debt;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

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

In DATE the applicant instituted proceedings in the ORG against his former employer , the ORG - owned “ ORG ” company , to recover salary arrears . On DATE the court awarded the applicant UAH CARDINAL,CARDINAL in salary arrears and compensation .

On DATE ORG returned the writ of execution to the applicant on the ground that the debtor lacked funds that could be attached and the court had prohibited seizure of the debtor ’s accounts .

On DATE ORG , following the applicant ’s complaint , ordered ORG to renew the enforcement proceedings in the case .

The judgment in the applicant ’s favour remains unenforced .

The relevant domestic law is summarised in the judgment of ORG v. GPE ( no . CARDINAL , § § DATE , DATE ) .


André Potocki;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

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

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

The applicant was serving his sentence in the closed section of Dob Prison in the period between DATE and DATE .

As regards the facilities available in the cells and common areas , as well as the health care regime in the prison , the conditions regarding activities outside the cells and contact with the outside world , see the ORG ’s decision in the case of PERSON and PERSON v. GPE ( dec . ) , no . CARDINAL etc . , CARDINAL DATE .

DATE and DATE the applicant was held in FAC , in cell no . CARDINAL which measured QUANTITY and accommodated CARDINAL prisoners . After his brief hospitalisation ( see below ) he was returned to the same cell , which continued to accommodate CARDINAL prisoners . He therefore at all times had QUANTITY of personal space while being held in the prison cell .

At the beginning of his imprisonment the applicant participated in work therapy sessions , but soon dropped out for unspecified reasons .

The applicant suffers from a large ulceration on his left tibia ( the part of the leg below the knee ) , which had already appeared in DATE . According to the Government , in the period between CARDINAL DATE and DATE , the applicant visited the prison clinic CARDINAL times .

The applicant ’s medical record shows that the wound was cleaned and dressed systematically ( DATE and , during certain periods , DATE ) in the prison clinic . Medication was occasionally prescribed to the applicant . The applicant ’s comments concerning his condition , in particular as regards his pain and discomfort , were also noted in his medical record .

Reports from the prison doctor , which appear to have been prepared at the ORG ’s request , note that the applicant ’s ulcer was regularly cleaned by nurses under the supervision of a general practitioner , that he was also regularly treated by the prison psychiatrist , and was undergoing methadone substitution treatment . It was also noted in CARDINAL of the reports that the medical assistance provided to the applicant was of a higher standard than that commonly received by individuals with a similar medical problem in GPE .

During the period of his imprisonment the applicant was twice admitted to ORG Surgery at ORG , in order to undergo surgical treatment for his ulcer . On both occasions it was envisaged that the surgery would be performed under general anaesthesia . The first time , on DATE , complications arose when the anesthetist was inserting the intravenous catheter . The applicant was given the option of the catheter being inserted through his inguinal canal ( in the groin ) or his neck , but he refused , and the surgery was aborted for that reason . The same occurred following the applicant ’s second admission to the aforementioned hospital on DATE . A hospital report dated DATE notes that the applicant ’s ulcer was not infected . It also advised that the applicant ’s status in prison be appropriate to his state of health .

For the relevant domestic law and practice , see paragraphs CARDINAL and ORG the ORG ’s judgment in the case of ORG and Others v. GPE ( nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and ORG , DATE ) , and paragraphs CARDINAL of ORG and PERSON GPE ( nos . CARDINAL/CARDINAL and CARDINAL , DATE ) , as well as PERSON and Others , cited above .

In addition , LAW ( Official Gazette no . CARDINAL/CARDINAL , entry into force on DATE ) provides for procedures for dealing with complaints concerning , inter alia , inadequate medical treatment or care . In accordance with the provisions of that LAW , a patient can lodge a complaint directly with a health - care provider . If unsatisfied , he or she can complain to ORG . Ultimately , a patient whose complaint has been unsuccessful can challenge the decisions made in his or her case before ORG . The LAW also regulates the work of the Representative for Patients’ Rights , whose main role is to assist , provide advice to and represent patients in the exercise of their rights provided therein .