Remainder inadmissible;Violation of Art. 3;Violation of Art. 6-1 and 6-3-b;Violation of P7-2;Non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra

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

The applicant is the Chairman of the NORP regional branch of ORG , CARDINAL of the opposition parties . Prior to his retirement the applicant had worked in law enforcement for DATE , including DATE as chief of police of ORG ( ՀՀ ոստիկանության ORG բաժին ) .

A series of demonstrations were held from DATE to DATE in GPE , organised by the opposition parties in protest against the alleged irregularities that had taken place at the DATE presidential election , challenging the legitimacy of the re - elected President . It appears that the applicant participated in some of these demonstrations .

On DATE the applicant was visited at his home by CARDINAL police officers who asked him to accompany them to ORG . It appears from the materials of the case that the applicant showed some resistance while being taken to the police station . The applicant denied this fact .

At the police station an administrative case was initiated against the applicant on the grounds that he had disobeyed the lawful orders of the police officers and had used foul language . The applicant alleged that the chief of police had told him that he had been arrested in order to prevent him from participating in the political demonstration due to be held DATE in GPE .

On DATE the applicant was taken to ORG ( ORG մարզի առաջին ատյանի դատարան ) where he was brought before Judge PERSON who sentenced him to DATE of administrative detention for “ disobeying the lawful order of the police officers and using foul language for TIME , when asked to come to ORG on suspicion of having committed a robbery ” .

The applicant was then taken to ORG at ORG to serve his sentence .

The applicant alleged that , following his release from detention on DATE , he had been subjected to frequent police visits to , and searches of , his home . He had been forced to hide when such visits took place , fearing that he would be taken to the police station again .

On DATE the applicant wrote to the ORG ( ՀՀ մարդու իրավունքների պաշտպան ) , complaining about the above events , including the alleged frequent visits by the police officers . It appears that this complaint was forwarded by the ORG to the regional prosecutor ’s office by a letter of CARDINAL DATE .

The applicant alleged that on DATE at TIME he had been visited at his home by CARDINAL police officers who had informed him that the Chief of ORG ( ՀՀ ոստիկանության ORG բաժնի պետ ) wanted to talk to him . He had then been taken to the police station .

It appears from the materials of the case that the applicant was arrested at TIME . According to the Government , the reason for his arrest was an argument that had erupted between him and the police officers who had stopped his car for a check .

At the police station an administrative case was initiated against the applicant , who was apparently charged under LAW ( Վարչական իրավախախտումների վերաբերյալ ՀՀ օրենսգիրք – “ the CAO ” ) with maliciously disobeying the lawful orders of police officers and using foul language . It appears that a record of an administrative offence was drawn up which was signed by the applicant . A third person , PERSON , made a statement corroborating the charge against the applicant .

The applicant alleged that at the police station he had been asked to sign a statement that he had used offensive language when stopped by police officers while driving his car . He had refused to sign this statement , claiming that the charge against him was false . The officers responded by stating that they had been instructed to write such a statement by the chief of police .

The applicant further alleged that at TIME he had been taken to meet the chief of police , who had informed him that he was to be detained for a further DATE . In reply the applicant denied the charges . The chief of police then used insulting language towards the applicant . Shortly thereafter he was taken to a court .

The Government contested the above allegations and claimed that the applicant had been informed by the police officers of his procedural rights , including his right to have a lawyer , but the applicant did not wish to have a lawyer .

The applicant was brought before Judge PERSON of ORG ( ORG մարզի առաջին ատյանի դատարան ) . Judge PERSON , after a brief hearing , sentenced the applicant under LAW of administrative detention . The judge ’s entire finding amounted to the following :

“ On TIME CARDINAL to CARDINAL DATE [ a car ] was continually driving through the village of Mrgashat , which raised the suspicion of police officers on duty who , for the purpose of a check , at TIME attempted to stop the car and to dispel their suspicion . The driver of the car [ the applicant ] started to swear at the police officers , obstructed their work , used foul language and disobeyed their lawful orders , for which he was brought to ORG .

In his submissions [ the applicant ] did not admit to having committed the offence , stating that he had not done anything wrong . He understood that he had to serve a sentence , therefore , he would go and serve a sentence . He was grateful to everybody , knew the law well and did not need defence counsel .

The witnesses , ORG [ G. ] and ORG on ORG [ A. ] of ORG , stated that [ the applicant ] had disobeyed their lawful orders , used foul language and sworn at them .

Witness [ S. ] stated that he had been present when [ the applicant ] swore at and argued with the police officers .

The commission of the offence by [ the applicant ] is corroborated by the record of an administrative offence , the reports , [ the record of the arrest ] and witness statements . ”

According to the record of the court hearing , the hearing was held in public at TIME The judge informed the applicant of his right to challenge the judge and the clerk and to have a lawyer . The applicant did not wish to lodge any challenges or to have a lawyer . The judge then proceeded with examination of evidence . It appears that the judge heard the applicant , the relevant police officers and then witness S. The judge departed to the deliberation room , after which he returned and announced the decision .

NORP The applicant alleged that the record of the court hearing did not adequately reflect what had taken place in reality . The judge had failed to question or take any evidence from the applicant and to provide him with the necessary time to call defence witnesses and to cross - examine the police officers and the prosecution witnesses . His submissions as to the falseness of the police reports had been ignored . He had never been informed of his right to have a lawyer . The hearing had lasted TIME .

On DATE the applicant wrote to ORG ( Արմավիրի մարզի դատախազ ) , complaining about the alleged police visits , claiming that the administrative cases against him had been fabricated , asking the Prosecutor to act upon his complaints and asking to be released . He also alleged that the chief of police had insulted him .

On DATE the competent prosecutor ’s office refused to institute criminal proceedings in the absence of a criminal act . No appeal was lodged against this decision .

NORP The applicant served his second DATE sentence at ORG at ORG .

The applicant alleged , and the Government did not dispute , that during that period he had been kept in a cell which measured QUANTITY . m together with CARDINAL other inmates , of whom several held multiple criminal convictions , despite his age , his position as a former chief of police and his lack of previous convictions . There were no beds and the detainees had to sleep on plywood on the floor . The cell was poorly ventilated and there was not enough fresh air . All the detainees except the applicant smoked in the cell . The cell was CARDINAL dark , with a small window which measured CARDINAL sq . m and was practically closed . The applicant ’s access to the toilet facilities and to drinking water was limited to twice per day . He received CARDINAL meal per day . Since he was a former chief of police , he felt grossly humiliated and was fearful for his safety during his detention .

The applicant alleged that after his release from detention on CARDINAL DATE he continued to suffer from anxiety and insomnia .

For a summary of the relevant provisions of the ORG see the judgment in the case of GPE v. GPE ( no . GPE , § DATE , DATE ) . The provisions of the ORG which were not cited in the above judgment , as in force at the material time , provide :

“ Maliciously disobeying a lawful order or demand of a police officer or a member of the voluntary police made in the performance of his duties of preserving public order shall result in the imposition of a fine of PERCENT and double the fixed minimum wage , or of correctional labour for DATE with the ’s personality , the application of these measures would be deemed insufficient , of administrative detention not exceeding DATE . ”

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

“ An arrested or detained person is entitled : ... ( CARDINAL ) to lodge , himself or through his lawyer or lawful representative , applications and complaints alleging a violation of his rights and freedoms with the administration of the facility for arrested or detained persons , their superior authorities , a court , a prosecutor ’s office , the ORG , the bodies of public administration and local self - governance , non - governmental unions and [ political ] parties , mass media and international institutions and organisations protecting human rights and freedoms . ”

“ ... The living space afforded to arrested and detained persons must comply with the building and sanitary - hygienic norms established for general living spaces . The area of the living space afforded to arrested and detained persons shall not be CARDINAL sq . m for each individual .

Arrested and detained persons must be provided with individual bedding and bed linen . ”

The relevant provisions of the Decree read as follows :

“ Special sections of the [ facilities for holding arrested persons ] shall be reserved for persons who have been subjected to administrative detention for periods prescribed by [ the ORG ] ... ”

The relevant part of the ORG reads as follows :

“ CARDINAL . Conditions of detention

a. introduction

At the outset , the ORG wishes to highlight the criteria which it applies when assessing police detention facilities .

All police cells should be clean , of a reasonable size for the number of persons they are used to accommodate , and have adequate lighting ( i.e. sufficient to read by , sleeping periods excluded ) and ventilation ; preferably , cells should enjoy natural light . Further , cells should be equipped with a means of rest ( for example , a chair or bench ) and persons obliged to stay TIME in custody should be provided with a clean mattress and clean blankets .

Persons in custody should be able to satisfy the needs of nature when necessary , in clean and decent conditions , and be offered adequate washing facilities . They should have ready access to drinking water and be given food at appropriate times , including CARDINAL full meal ( that is , something more substantial than a sandwich ) DATE . Persons held in custody for TIME or more should , as far as possible , be offered TIME of outdoor exercise every day .

b. temporary detention centres

During the visit , the ORG ’s delegation visited temporary detention centres in GPE , GPE , GPE , ORG and ORG Establishments of this type are used to hold CARDINAL categories of detainees : criminal suspects and persons under administrative arrest .

Conditions of detention in the temporary detention centres visited varied from acceptable ( at ORG ) to poor ( e.g. at the PERSON and ORG ) .

As regards occupancy levels , a consultation of registers and the number of sleeping places per cell suggested that the minimum standard of CARDINAL m² of living space per person , as stipulated by the PERSON on [ ORG ] , was respected as concerns criminal suspects . However , the ORG must add that this minimum standard is too low . As concerns the cells for administrative detainees , the information gathered during the visit indicated that conditions could become extremely cramped , e.g. CARDINAL detainees in a cell of CARDINAL m² in GPE and GPE .

All the centres visited presented deficiencies concerning the in - cell lighting and ventilation . With the exception of the GPE centre , access to natural light was poor ( small windows , sometimes - as in GPE - covered by metal shutters ) or inexistent ( e.g. in NORP ) . Artificial lighting was invariably dim , with some cells ( e.g. in GPE , NORP and NORP ) submerged in near darkness . As to ventilation , it left something to be desired at GPE and GPE .

As to the state of repair and hygiene of the detention areas , it ranged from quite acceptable at ORG to poor at the PERSON establishment . Cells at the Temporary detention centre in GPE were in a reasonably good state of repair ; however , their level of cleanliness left something to be desired . Detention areas in GPE and NORP were dilapidated but clean .

Cells were furnished with beds or wooden sleeping platforms . The delegation noted that mattresses , sheets , pillows and blankets were available for criminal suspects at all the temporary detention centres visited ; however , this was not the case for administrative detainees .

The delegation did not hear any complaints from persons who were - or had recently been - detained at the centres visited as regards access to a toilet . However , with the notable exception of ORG , the communal toilet and washing facilities were dilapidated and dirty .

The centres in GPE and GPE possessed shower facilities , which could apparently be used by newly - arrived detainees ( upon recommendation of a feldsher / doctor ) and by those administrative detainees who stayed in the respective establishments for DATE . In both centres , the shower facilities were in an acceptable state of repair and cleanliness , and hot water was available . However , the only personal hygiene item that was distributed to detainees was a small piece of soap .

According to information provided by police officers in the majority of the temporary detention centres visited , detainees were offered food CARDINAL times per day , including CARDINAL hot meal . However , this was not the case at ORG , where food was only delivered once per day , reportedly due to the limited budget set aside for this purpose ( CARDINAL ORG - i.e. MONEY - per detainee per day ) . In this situation , the provision of food was to a large extent ensured by detainees’ families . Detained persons without family contacts had to rely on the generosity of other detainees or individual police officers for food .

All the temporary detention centres visited possessed outdoor exercise areas , where detainees were apparently allowed to take exercise for TIME per day ( in the case of women and juveniles - for TIME per day ) . However , at FAC of ORG in GPE , the delegation was informed that detainees could be deprived of outdoor exercise as a form of punishment for violation of the centre ’s internal regulations .

DATE . The ORG recommends that the NORP authorities take steps at temporary detention centres to :

- ensure that all detainees are offered adequate living space ; the objective should be CARDINAL m² per person ;

- provide adequate in - cell lighting ( including access to natural light ) and ventilation ;

- maintain the cells and common sanitary facilities in a satisfactory state of repair and hygiene ;

- ensure that all detainees ( including those held for administrative violations ) are offered a mattress and blankets at TIME ;

- ensure that administrative detainees are able to take a hot shower at least once DATE during their period of detention ;

- ensure that all detainees are offered food - sufficient in quantity and quality - at normal meal times ;

- put an end to deprivation of outdoor exercise as a disciplinary punishment . ”

The relevant part of the ORG reads as follows :

“ CARDINAL . Conditions of detention

a. Temporary detention centre of ORG of GPE

Conditions of detention in this facility remained basically the same as those observed during DATE visit , i.e. poor . CARDINAL positive change was that persons under administrative arrest were now provided with bedding ( pursuant to Order No . CARDINAL of the Head of ORG DATE ) . Further , the delegation was informed that the food entitlement for detainees had been increased by Government decision of DATE . Otherwise , no refurbishment or major repairs had taken place since the previous visit .

Consequently , the ORG reiterates the recommendations made in paragraph CARDINAL of the report on DATE visit , in particular as regards living space , in - cell lighting , ventilation , state of repair and hygiene . ”

“ CARDINAL . Conditions of detention

a. police holding areas

At DATE visit , the delegation was informed that , pursuant to LAW , dated DATE , a large - scale refurbishment programme had been initiated in all police holding areas . The ORG welcomes this . It should also be noted that a recent amendment to the [ Law on ORG ] increased the official standard of living space per detained person in police holding areas to CARDINAL m² . This can be considered as acceptable when applied to multi - occupancy cells ; however , CARDINAL m² is not an adequate size for a single occupancy cell .

During the visit , the delegation could observe the impact of the above - mentioned programme . Some of the police holding areas ( e.g. in GPE , PERSON and PERSON ) were still undergoing refurbishment and were to reopen shortly . As regards the already refurbished holding areas , conditions in them were overall of a high standard . ”


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)

Françoise Tulkens;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque

The applicant was born in DATE and lives in GPE .

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

On DATE the applicant ’s brother ( “ the plaintiff ” ) filed a claim against the applicant with ORG in GPE ( P. no . CARDINAL ) . The claim concerned the validity of a “ life - long maintenance contract ” ( ugovor o doživotnom izdržavanju ) concluded between the applicant and their late mother in so far as it involved a house in which she had lived and the applicant ’s acquisition of the title thereto following her death . The value of the dispute ( vrednost spora ) indicated by the plaintiff was MONEY ( ORG / equivalent to QUANTITY ( ORG ) ) .

On DATE the applicant informed the court in CARDINAL sentence that he contested the plaintiff ’s allegations and claim . He further stated that , in view of the main hearing scheduled for DATE , he intended to lodge a comprehensive written pleading soon .

On DATE the court formally stayed the proceedings ( doneo rešenje o mirovanju ) until DATE as no one attended the hearing .

On DATE the plaintiff requested the continuation of the proceedings .

The CARDINAL following hearings , scheduled DATE , were adjourned due to problems with having the parties properly summoned or their own requests for adjournment .

On DATE the court held a brief hearing . The plaintiff reaffirmed his claim , stating that he would provide further evidence after the applicant had submitted his response to the claim ( odgovor na tužbu ) . The applicant requested the court to discontinue the proceedings pending the outcome of another case . The court ordered the applicant to submit his response to the claim and adjourned the hearing indefinitely .

In his written response of DATE , the applicant from the outset requested the court to determine a realistic value of the dispute .

On DATE the court formally discontinued the proceedings ( doneo rešenje o prekidu postupka ) and requested the plaintiff to pay the court stamp duty ( sudska taksa ) calculated on the basis of the value of the dispute as initially specified by the plaintiff .

On DATE , at the outset of the first hearing held in the resumed proceedings , ORG formally established that the actual value of the dispute was ORG ( equivalent to approximately LAW ) . It further ordered the plaintiff to pay additional stamp duty , corresponding to the difference between the initially specified value of the dispute and that decided on by the court .

On DATE ORG ruled in favour of the plaintiff , declaring the impugned contract partially void . In so doing , it reaffirmed that the value of the dispute was ORG .

On DATE ORG in GPE upheld this judgment on appeal , noting that the value of the dispute was ORG .

On CARDINAL DATE the applicant filed an appeal on points of law ( izjavio reviziju ) .

On DATE ORG rejected this appeal . It found that the applicant was not entitled to lodge an appeal on points of law given that the value of the dispute in question , as specified in the claim of DATE , was ORG CARDINAL and , as such , well below the applicable statutory threshold of RSD CARDINAL . ORG also noted , without any further explanation , that the determination of the value of the dispute on DATE by ORG had been carried out in breach of LAW .

The applicant was served with ORG decision on DATE .

In the meantime , on DATE , ORG ordered the applicant to pay court fees calculated on the basis of the value of the dispute set at ORG .

The applicant has not yet paid this amount .

Articles CARDINAL provide general rules as regards the means of establishing the value of a civil dispute . Article CARDINAL § CARDINAL provides that , in cases not relating to pecuniary requests , the relevant value of the dispute shall be the one indicated by the plaintiff in his claim . However , LAW provides that when the value of the dispute specified by the plaintiff appears to be “ obviously too high or too low ” , and thus might affect , inter alia , the availability of an appeal on points of law , the court of first instance shall itself assess the accuracy of the specified value . This must be done speedily and in an adequate manner , at the preliminary hearing ( pripremno ročište ) at the latest , or , if one is not held , at the main oral hearing ( glavna rasprava ) before the examination of the merits .

Articles CARDINAL - CARDINAL prescribe the rules on the preparation for and the holding of the main hearing . In particular , LAW provides that a preliminary hearing shall not be scheduled when the civil proceedings at first instance are to be conducted by a single judge . LAW states , inter alia , that when a party objects on a certain issue , submits a motion or undertakes other procedural action in the proceedings before the respondent has begun contesting the subject - matter of the dispute , the respondent as a party may undertake such procedural steps before he has concluded his response to the claim .

Article CARDINAL § CARDINAL provides that an appeal on points of law ( revizija ) is “ not admissible ” in cases not relating to pecuniary requests where the value of the dispute , as indicated by the plaintiff in his claim , does “ not exceed MONEY ” .

In accordance with ORG CARDINAL and CARDINAL - CARDINAL , inter alia , the ORG shall , should it accept an appeal on points of law lodged by CARDINAL of the parties concerned , have the power to overturn the impugned judgment or quash it and order a retrial before the lower courts . Lastly , Article CARDINAL provides , inter alia , that the ORG shall reject any and all appeals on points of law which it deems inadmissible .

Article CARDINAL , inter alia , increased the minimum requirement for an appeal on points of law from MONEY to QUANTITY .

LAW entered into force on DATE , thereby repealing LAW DATE . LAW former , however , provides that in all cases which were brought before that date the applicable legislation , as regards an appeal on points of law , shall be the legislation which was in force prior to DATE .

Article CARDINAL § CARDINAL further provides that a case may be reopened if ORG has in the meantime rendered a judgment in respect of GPE concerning the same or a similar legal issue .

If a claim does not contain a pecuniary request ( LAW ) , the value of the dispute concerning the contested part of the appellate decision relevant for the assessment of the right to appeal on points of law shall be the one indicated by the plaintiff in his or her civil claim , or the one established by the court , speedily and in an adequate manner , at the preliminary hearing at the latest , or , if one was not held , during the course of the main oral hearing before the examination of the merits ( LAW ) , hence , before the plaintiff had started arguing his claim ( LAW ) .

In this regard , if the court omitted to assess the value of the dispute , and if the respondent failed to submit an objection thereto at the preliminary hearing , or , if one was not held , at the first hearing of the main oral hearing before his response to the claim had been concluded ( LAW ) , both the courts and the parties are thereafter precluded from discussing the value of the dispute .


CASE OF KARAMITROV AND OTHERS v. BULGARIA

Violation of Art. 6;Violation of Art. 13+6;Preliminary objections joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of P1-1;Violation of Art. 13+P1-1

Javier Borrego Borrego;Margarita Tsatsa-Nikolovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych

On TIME DATE a car was stolen from an unsecured car park . Early in DATE a preliminary investigation in respect of the theft was opened against an unknown perpetrator .

On CARDINAL DATE the first applicant was stopped by the police while driving the car of his parents – the second and third applicants . The police established a discrepancy between the numbers on the chassis of the vehicle and those in the registration documents of the vehicle which had been issued by ORG on DATE . They seized and impounded the car in order to check its registration documents and ownership . The first applicant was questioned regarding the discrepancy in the car ’s registration documents both on the above date and on DATE .

The investigating authorities commissioned a technical examination of the seized vehicle . In a report of DATE the technical expert concluded that the number plate on the chassis of the car was not the original , but had been changed .

On DATE the first applicant was charged with being an accessory to the theft of the car on DATE . He was questioned on DATE and then released . A restriction was imposed on the first applicant , not to leave his place of residence without the consent of ORG .

No further investigative procedures were conducted in the course of the preliminary investigation .

On DATE the first applicant complained to ORG about the length of the criminal proceedings . He did not receive a response .

Subsequently , the first applicant lodged similar complaints with ORG , ORG , ORG and ORG about the length of the criminal proceedings . He did not receive a response to any of them .

Sometime in DATE the investigator in charge of the preliminary investigation died , while the assistant investigator retired . The first applicant ’s case was never reassigned to another investigator .

Sometime in DATE the first applicant lodged another complaint about the length of the criminal proceedings with ORG . In response , ORG was instructed to investigate the first applicant ’s complaint .

In a decision of DATE of ORG the preliminary investigation was discontinued in respect of the first applicant as unproven . The restriction on the first applicant not to leave his place of residence without the consent of ORG was removed .

The criminal proceedings continued , against an unknown perpetrator , until DATE when ORG terminated them due to the expiry of the statute of limitations for the offence . In its decision , ORG expressly noted that no investigative procedures had been conducted in the proceedings after DATE , the date on which the first applicant was arrested and charged .

The car was seized and impounded by the police on CARDINAL DATE in order to check its registration documents and ownership . No protocol of seizure was prepared and the second and third applicants were not given a receipt or any other document evidencing the impounding of the vehicle .

The car remained impounded by the police for the duration of the preliminary investigation against the first applicant as physical evidence of the offence .

On DATE the person from whom the car had allegedly been stolen on DATE requested possession of the vehicle .

NORP The question of returning the vehicle to the second and third applicants was raised by the first applicant in his complaints regarding the length of the criminal proceedings lodged with ORG on DATE , ORG on DATE and ORG in DATE . No action was taken in response to any of them .

In its decision of DATE to terminate the criminal proceedings against the first applicant ORG noted that no protocol or other document existed to show “ who , when , why and how ” the vehicle of the second and third applicants had been seized and impounded . Nevertheless , ORG ordered that the car be handed over to the person from whom it had allegedly been stolen on DATE because it considered that , inter alia , on the basis of the investigative procedures performed during the preliminary investigation she was the owner of the vehicle . The applicants appealed against the decision in respect of the order to hand over the car to another person .

On an unspecified date the police handed over the car of the second and third applicants to the person from whom it had allegedly been stolen .

NORP In a decision of CARDINAL DATE ORG upheld the decision of ORG on grounds similar to those contained in the latter ’s decision . The applicants appealed further .

On DATE ORG quashed the above decisions of the lower - level ORG . It found , inter alia , that it was not within their competencies to determine the ownership of the vehicle and , in view of the termination of the preliminary investigation against the first applicant , the car had to be returned to the persons from whom it had been seized . It further found that the seizure of the vehicle and the resulting impounding had been unlawful because at the time the seizure had been made no protocol to that effect had been executed . The person to whom the car had been handed over appealed against the decision .

In a decision of DATE ORG upheld the decision of ORG on grounds similar to those contained in the latter ’s decision .

The car was returned to the second and third applicants on DATE . As a result of the period of impounding it had been damaged – its paintwork had deteriorated and the radiator was cracked . Parts of the car were also missing , such as CARDINAL spark plugs and cables , the left headlight , the spare tyre , the indicators , the cover of the right back brake light , the door handles and other things . They estimated the damage to be worth MONEY ( MONEY ) . The first applicant , who signed the protocol of transfer , made a reservation that he would make a further assessment of the damage caused to the vehicle and that a subsequent claim might be filed against ORG in that respect .

The second and third applicants did not initiate any action to seek compensation for the alleged damage caused to the vehicle .

Paragraphs CARDINAL , CARDINAL and CARDINAL of LAW ( DATE ) provided as follows :

“ ( CARDINAL ) Physical evidence must be carefully examined , described in detail in the respective record , and photographed , if possible .

( CARDINAL ) Physical evidence shall be attached to the case file while at the same time measures shall be taken not to spoil or alter the evidence .

( CARDINAL ) Physical evidence which , because of its size or other reasons , can not be attached to the case file , must be sealed , if possible , and deposited for safekeeping at the places indicated by the respective authority . ”

Paragraphs CARDINAL and CARDINAL of Article CARDINAL of the Code , as in force at the relevant time and until DATE , provided as follows :

“ ( CARDINAL ) Physical evidence shall be held until the termination of the criminal proceedings .

( CARDINAL ) ORG which have been collected as physical evidence can be returned to their owners before the termination of criminal proceedings only as long as this will not hinder the establishment of the facts in the case . ”

Article CARDINAL paragraph QUANTITY of the Code was amended on DATE to clarify that it was within the powers of ORG to rule on requests for the return of chattels held as physical evidence . In addition , a right of appeal to a court was introduced against refusals by ORG to return such chattels ( LAW paragraph CARDINAL of LAW as in force after DATE ) .

If a dispute over ownership requiring adjudication by the civil courts arose in respect of items held as physical evidence , the authorities were obliged to keep those items safe until the relevant judgment became final ( Article CARDINAL ) .

The Code of Criminal Procedure ( DATE ) was replaced in DATE by a new code of the same name .

Section CARDINAL ( CARDINAL ) of the ORG and Municipalities’ LAW of DATE ( the “ ORG ” : title changed in DATE ) provided , as in force at the relevant time , as follows :

“ The ORG shall be liable for damage caused to [ private persons ] from unlawful acts , actions or inactions of its apparatus and officials [ in the exercise ] of administrative duties . ”

Section CARDINAL of the ORG provides as follows :

“ The ORG shall be liable for damage caused to [ private ] persons by the [ apparatus ] of ... the investigation authorities , the prosecution authorities , the court ... for an unlawful :

NORP detention ... ;

NORP charge for an offence , if the person has been acquitted or the opened criminal proceedings have been terminated because the act was not perpetrated by the person [ in question ] or the act is not an offence ... ;

NORP sentence ... ;

NORP ... forced medical treatment ... ;

NORP ... imposition of administrative sanctions ... ;

enforcement of an imposed sentence in excess of the determined period ... ”

Compensation awarded under the LAW comprises all pecuniary and non - pecuniary damage which is the direct and proximate result of the illegal act of omission ( section CARDINAL ) . The person aggrieved has to lodge an “ action ... against the [ entity ] ... whose illegal orders , actions , or omissions have caused the alleged damage ” ( section CARDINAL ) . Compensation for damage arising from instances falling under section CARDINAL and CARDINAL of the LAW can only be sought under LAW and not under the general rules of tort ( section CARDINAL § CARDINAL ) .

The practice of the NORP courts in the application of the LAW has been very restrictive .

In particular , the domestic courts have ruled that liability for damage stemming from instances within the scope of LAW are to be examined only under LAW and not under the general rules of tort ( решение № DATE от CARDINAL.III.CARDINAL г. по гр.д. № CARDINAL г. , ORG , IV г.о. ) .

Similarly , liability of the investigation and the prosecution authorities may arise only in respect of the exhaustively listed instances under LAW ( CARDINAL ) and ( CARDINAL ) of the LAW and not under the general rules of tort ( решение № CARDINAL от DATE г. по гр.д. № CARDINAL г. , PERSON and PERSON решение № CARDINAL от CARDINAL г. по т. гр. д. № CARDINAL г. , ORG на ВКС ) . No reported cases have been identified of successful claims for damage stemming from actions by the investigation or prosecution authorities which fall outside the list in section QUANTITY of the Act .

Liability under section CARDINAL of the Act may arise only for unlawful actions , but not for unlawful inactions by the investigation authorities , the prosecution authorities and the courts ( решение № CARDINAL от CARDINAL.IV.CARDINAL г. по гр. д. № CARDINAL г. ) .

Up to DATE there existed conflicting domestic case law as to whether liability of the ORG arose under LAW ( CARDINAL ) of the LAW in instances , such as in the present case , when criminal proceedings were discontinued as “ unproven ” ( решение от CARDINAL.CARDINAL.CARDINAL г. по въззивно ORG д. № DATE г. на ORG and решение № CARDINAL от CARDINAL.CARDINAL.CARDINAL г. по гр. д. № DATE г. , IV г.о. ) . The issue was clarified by ORG of ORG in GPE decision no . CARDINAL of DATE ( PERSON решение № CARDINAL от CARDINAL г. по т. гр. д. № CARDINAL г. , ORG на ВКС ) which found that section CARDINAL ( CARDINAL ) of the LAW was applicable in such instances .

The Government presented CARDINAL judgments under the ORG where the domestic courts had found the ORG liable to pay damages to claimants . Of these cases ( a ) CARDINAL judgments were based on section CARDINAL ( CARDINAL ) of the LAW and related to being unlawfully charged with an offence ; ( b ) CARDINAL were based on LAW relating to unlawful acts by the administration ; ( c ) a further CARDINAL were also based on CARDINAL of the LAW but stemmed from unlawful actions or inactions by the administration ; and ( d ) CARDINAL cases related to more specific complaints falling under LAW .

In their submissions , the Government stressed the existence of a judgment delivered by ORG on DATE . In that case the domestic court had ordered ORG to pay compensation for the pecuniary damage suffered by a claimant as a result of the former ’s inactivity in keeping safe a vehicle seized as physical evidence in a case . A related claim in respect of non - pecuniary damage had been dismissed and ORG had also been ordered to pay the claimant compensation for the non - pecuniary damage suffered as a result of being unlawfully charged with an offence .

In their submissions in reply , the applicants informed ORG subsequent development of the above - mentioned case . The judgment relied on by the Government had been appealed against both by ORG and ORG . ORG examined the appeal and delivered a final judgment on DATE . It quashed the first - instance court ’s judgment in respect of the liability of ORG for the damage to the claimant ’s vehicle as it found that the police ’s actions , or inactions , as they related to the safekeeping of a vehicle as physical evidence , did not fall within the definition of “ administrative duties ” under LAW nor under any of the instances under LAW . Thus , the police could not be held liable for their actions or inactions in similar such instances . Separately , ORG upheld the first - instance court ’s judgment against ORG .

The Obligations and Contracts Act provides in section CARDINAL that a person who has suffered damage can seek redress by bringing a civil action against the person who has , through his fault , caused the damage . Under section CARDINAL the claim for damage is extinguished with the expiry of a DATE prescription period .


The applicant , PERSON , is an NORP national , born in GPE in DATE . When lodging his application he was living in GPE ( GPE ) . He is represented before the ORG by PERSON , a lawyer practisig in Stockach ( GPE ) .

The members of the applicant ’s family , i.e. his parents and CARDINAL brothers and sisters , are living in GPE . The applicant has lived together with a NORP national for DATE and a child was born out of wedlock in DATE .

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

On DATE ORG ( Regierungspräsiduum ) ordered the applicant ’s expulsion . It noted the applicant ’s repeated criminal convictions since DATE , in particular his conviction of drug trafficking in DATE when he had been sentenced to DATE and CARDINAL months’ imprisonment . ORG found that this serious criminal conduct reached the level of severity justifying the expulsion of a foreigner born GPE and in possession of a residence permit . In this context , ORG considered his personal and family situation , in particular that he was the father of a NORP child , born DATE before he had been taken into detention in DATE , but also the fact that he had twice been warned about the consequences of criminal conduct . Referring to LAW , ORG argued that the applicant , on account of his age , would manage his integration in GPE . Moreover , the public interest in his expulsion , given the seriousness of his criminal conduct , outweighed his own and his child ’s and friend ’s family interests . ORG ordered that the applicant be expelled after having served his prison sentence .

The applicant appealed against this expulsion order and the decision dismissing his administrative appeal to the competent administrative courts . At the same time he applied for an interim measure to stop his expulsion .

On DATE ORG ( Verwaltungsgericht ) refused his request for an interim measure . His appeal ( Beschwerde ) was dismissed by ORG ( Verwaltungsgerichtshof ) on DATE .

On DATE ORG ( Bundesverfassungsgericht ) refused to entertain the applicant ’s complaint . It found that the refusal of an interim measure did not violate his basic rights and that the proceedings on the merits ( GPE ) were still pending .

The applicant was expelled to GPE in DATE .

The applicant ’s appeals in the main proceedings remained unsuccessful .


David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in Viničné .

On DATE she lodged an action against a limited liability company with ORG . She requested that the decisions , which had been adopted at the general meeting of the company members held on DATE , be declared void .

On DATE ORG found a violation of the applicant 's right under LAW to a hearing within a reasonable time , awarded her the equivalent of CARDINAL ( ORG ) ( at that time ) in respect of non - pecuniary damage , ordered ORG to proceed without further delay and to reimburse the applicant 's costs .

On DATE the civil proceedings were discontinued on the ground that the defendant company had been dissolved and wound up . In the absence of an appeal , the decision became final on DATE .

On DATE ORG rejected a fresh complaint lodged on DATE as being manifestly ill - founded ( as to the length of proceedings ) and for non - exhaustion of domestic remedies ( as to the alleged unfairness of the proceedings and interference with the applicant 's property rights ) . The decision was served on the applicant 's lawyer on DATE .


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall

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

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

On DATE the applicant was taken into police custody by police officers from ORG of ORG on suspicion of membership of the ORG ( Workers’ ORG ) , an illegal organisation .

On DATE ORG remanded him in custody . The public prosecutor filed a bill of indictment with ORG charging the applicant , LAW of LAW , with membership of a terrorist organisation and with having been engaged in acts aimed at the secession of a part of the territory of the ORG .

On DATE ORG commenced proceedings against the applicant and CARDINAL other suspects .

On DATE GPE ’s ORG amended LAW and excluded military members from ORG . Following similar amendments made on DATE to the PERSON on ORG , the military judge sitting on ORG hearing the applicant ’s case was replaced by a civilian judge .

At the hearing of DATE the military judge sitting on the bench of ORG was replaced by a civilian judge .

On DATE ORG found the applicant guilty as charged and sentenced him to life imprisonment . The applicant appealed against the judgment . The applicant ’s representative asked the appeal court to hold a hearing , which was granted .

On DATE ORG , after hearing the applicant ’s representative , closed the hearing and informed the parties that judgment would be pronounced on DATE .

At the hearing of DATE ORG pronounced its judgment upholding ORG judgment . The applicant ’s representative did not attend the hearing .

On DATE ORG judgment was placed in ORG .

On DATE the applicant ’s representative requested a copy of the final judgment from ORG ; it was given to him on DATE .


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant , Mr PERSON , is a NORP national who was born in DATE and is currently detained in ORG .

DATE , the major crime unit of ORG carried out a surveillance operation ( ORG ) into a suspected conspiracy to supply heroin and ecstasy . The operation involved surveillance from fixed and mobile observation points which were recorded over radio link and logged . Details of telephone calls were also gathered . Some observations were photographed .

The conspiracy involved repeated imports of large quantities of heroin . From DATE , the heroin was imported into GPE via the Channel Tunnel by PERSON and taken to the house of PERSON , at CARDINAL ORG , GPE . The final delivery with an estimated street value of MONEY was seized by police at CARDINAL FAC on DATE .

The prosecution case was that the applicant was a central figure in the conspiracy and acted as the controller and director of operations . The case against the applicant was almost entirely circumstantial and was based on the observations gathered in ORG .

The applicant was first interviewed in the presence of his solicitor at TIME on DATE . He was cautioned and asked about his presence at CARDINAL ORG Street on DATE . He was also advised that his own home had been searched and was questioned about items recovered during the search , including the sum of GBP CARDINAL in cash . He was told that it was believed that he associated with named individuals who were also suspected of participating in the conspiracy . He made no comment , save to say that the cash belonged to a member of his family and that he did not wish to disclose the identity of that person “ at this moment ” . He indicated that his refusal to comment was the result of the “ lack of disclosure ” . The interview lasted for TIME .

DATE , at TIME , the applicant was questioned a second time . He was cautioned again . The details of the police observations from ORG starting from DATE were put to him and he either made no comment or was silent in response to questions put .

At TIME , the interview was continued under caution . Every observation relating to the CARDINAL and DATE was put to the applicant . The applicant remained silent on all matters .

At TIME the interview was continued under caution . The applicant was asked specifically about police observations from CARDINAL and DATE and DATE . He did not answer any questions . He was also asked about a passport in another name bearing his photograph . He did not make any comment .

The applicant was tried before ORG . In DATE , prior to the commencement of the trial , the applicant served on the prosecution and the court a detailed defence statement . In DATE , at the trial itself , he gave detailed evidence in his defence regarding the large sums of money found at his home and his movements as observed during ORG . In particular , the applicant claimed that he was involved in the buying and selling of stolen cars , and that this explained the movements recorded by the police .

In relation to his failure to make any comment during the police interviews , the applicant explained that he was shocked by the circumstances of his arrest ; that he was acting on legal advice ; and that he had not wished to incriminate others involved in the buying and selling of stolen cars .

The prosecution intimated that they intended to invite the trial judge in due course to make an adverse inferences direction to the jury regarding the applicant ’s silence during the police interviews . The applicant sought to have the defence statement made in DATE put before the jury at his trial in order to show that he had set out his defence some time before the trial . The trial judge refused the application noting that the applicant had given detailed evidence in court and had therefore had the opportunity to present his case to the jury .

In his summing up to the jury , the judge noted that a number of the defendants , including the applicant , had declined to answer questions when interviewed by the police . The judge reminded the jury that the applicant was cautioned before the interviews , the terms of the caution being that he did not need to say anything but that it might harm his defence if he did not mention something when questioned on which he later sought to rely in court . The judge further noted that the defendants had subsequently , as part of their defence , relied on certain facts which they admitted they had not mentioned when questioned . In relation to the applicant , he gave CARDINAL example of such a fact . He concluded with the following general direction :

“ Members of the jury , since these defendants did not mention facts on which they now rely in support of their defences when they were interviewed , then as they were told , it may harm their defence ...

... [ T]hey were told that it may harm their defences because you ... may draw such inferences as appear proper from their failure to mention the facts concerned when they were interviewed when you are deciding whether they are guilty as charged . However ... you may draw inferences of that kind only in certain circumstances that I want to make clear to you . First of all , before you could draw such an inference you would have to conclude that quite independently of any such inference the prosecution ’s case against the defendant concerned was sufficiently compelling to call for an answer by him .

Secondly ... you would have to conclude that the fact that you are considering , the fact which he did not mention but has relied on now , was something that he could reasonably have been expected to mention at that time . Thirdly , you would have to conclude that the defendant had no answer [ at ] that time , and has since made up his account or has tailored his account to fit the prosecution ’s case , or indeed done both .

If those are your conclusions ... but only if those are your conclusions , then you may , if you think it is right and fair to do so , take into account the silence of the defendant concerned when deciding whether his evidence about [ the ] facts concerned [ is ] true . But ... that silence must not be the only basis or indeed the main basis of any verdict of guilty that you may return .

... [ T]he defence invites you not to draw any adverse inferences from their silence for a variety of reasons ... In PERSON case ... he said , ‘ I did n’t answer questions but amongst my reasons are that I was shocked by the circumstances of my arrest and I was acting on legal advice’ ...

If ... you think that the various matters raised ... by the defendants , or any of them , amounts to a reason why you should not draw any inference from the silence of the defendant concerned , then do not do so . But otherwise , subject to the direction that I have given you , you may do so . ”

The judge advised the jury that the fact that a defendant had received legal advice not to answer questions did not mean that the jury were automatically prevented from drawing any adverse inferences from the defendant ’s silence at interview . However , the judge emphasised the importance of legal advice and its relevance in considering whether the defendant ’s silence at interview was justified , provided that the jury were satisfied that the defendant in question had received such legal advice . He directed as follows :

“ The fact that a defendant receives legal advice not to answer questions does not mean that you are automatically prevented from drawing any adverse inferences from that defendant ’s silence . But legal advice is obviously a matter of importance and is something [ to ] which you should have due regard in deciding whether you do in fact draw adverse inferences .

You will first , of course , have to decide whether you accept that the defendant ... did in fact receive or may have received legal advice not to answer questions or certain of them . Obviously , if you do not believe that ... then the question of legal advice does not arise at all . But if you do accept that the defendant ... received legal advice to remain silent , then you should consider whether in the circumstance that the defendant found himself in , including indeed the nature of the advice that he was given , it was reasonable for him to act on the advice that he was given . Or whether , having been told that his silence might harm his defence , he could reasonably have been expected to decide for himself to say then what he has now said in court . ”

Following discussion of the position as regards legal advice , the judge reminded the jury of the position in the following terms :

“ All of this is subject to the general direction that I have already given to you , and you will recall that as part of that direction I have told you that adverse inferences only become a possibility if the only sensible reason for the silence of the defendant concerned was that he had no answer at the time of the interview to the questions that were being asked , and has made up his account since or tailored it to fit the prosecution ’s case or has done both . ”

The judge then went through the applicant ’s interviews in detail with the jury , pointing out that in relation to the sum of GBP CARDINAL found at his home , the applicant had subsequently admitted telling a lie when he claimed that the money belonged to a member of his family .

The judge further highlighted that the applicant had not , during interview , mentioned his involvement in buying and selling stolen cars and reminded the jury that , subject to the general direction he had given , they could draw adverse inferences from his silence if they thought it right to do so .. He summarised the reasons given by the applicant for his failure to answer questions during interview and directed the jury as follows :

“ If you think that those matters or any of them amount to a reason not to draw adverse inferences from his silence then do not do so . Otherwise , subject to the reference which I gave you earlier , you may do so if you think it right and fair to do so . ”

On DATE , the applicant was convicted by the jury of conspiracy to supply Class A drugs .

On DATE , the applicant was sentenced to CARDINAL years’ imprisonment .

The applicant appealed to ORG arguing , inter alia , that the judge should not have given a direction to the jury on the drawing of adverse inference from silence in his case . His appeal was dismissed on DATE .

On DATE , ORG referred the applicant ’s case to ORG on the ground that the trial judge ’s summing up in relation to adverse inferences was deficient when compared with the ORG guidelines . In particular , the trial judge had failed to identify the precise facts in respect of which adverse inferences could be drawn ; he had left the impression that an adverse inference could be drawn from the mere fact that the applicant had remained silent at interview ( rather than from his failure to mention a fact on which he had subsequently sought to rely at trial ) ; and the judge had failed to clarify that if the jury believed the applicant ’s reason for his silence , they could not draw an adverse inference .

On DATE , ORG dismissed the appeal . In relation to the general direction to the jury , the court considered ( at paragraph CARDINAL ) that :

“ ... save for the fact that the judge did not give a clear direction in accordance with the judgment of ORG , no fair criticism can be made of the directions he gave . He made it abundantly plain to the jury that they had to identify facts which were not mentioned in interview but which were relied upon subsequently by a defendant and in other respects he accurately directed them as to the circumstances in which any adverse inference could be drawn . ”

It later noted ( at paragraph CARDINAL ) that :

“ ... The mere fact ... that [ the trial judge ] did not list each of the facts [ upon which the applicant relied at trial ] themselves does not in our view derogate in any way from the overall direction which he gave which adequately identified the parts of the appellant ’s case which consisted of the fact upon which he relied which was not mentioned in interview ... [ T]he way the judge did identify the facts could in no way be described as amounting to a misdirection . ”

As regards the trial judge ’s summing up in relation to the applicant ’s silence during the police interview and his reasons for that silence , the court found :

“ [ Counsel for the defence ] can rightly criticise that part of the summing - up , firstly for failing to state that the appellant was under no obligation to answer any questions : he had a right to silence . Secondly , in our view he can criticise properly the fact that the judge appears to have been indicating to the jury that silence in interview could in itself entitle the jury to draw adverse inferences beyond the issues which he had in fact specifically identified ... ”

However , the court took into account the fact that no criticism had been made of the judge ’s summing up at the time and that , when the trial and summing up took place , the “ attitude of the courts to the proper way to sum up in relation to this aspect of trials was developing ” . It considered that the correct approach was to assess whether , having regard to the jury ’s verdict on the direction as given , the jury would have been bound to convict if a proper direction had been given . If the answer was in the affirmative , then the verdict was safe . Finally the court referred to the earlier ORG judgment which had found the evidence against the applicant to be overwhelming and concluded that the criticisms “ have the air of ex post facto criticisms which should not result in this appeal being allowed ” .

On DATE , the applicant appeared before ORG in respect of his non - payment of a confiscation order imposed following his conviction . The sum outstanding was GBP CARDINAL,CARDINAL , composed of GBP CARDINAL in “ hidden assets ” and GBP CARDINAL in interest on that sum .

A term of imprisonment of DATE , DATE and DATE was imposed , in default of payment , which represented DATE imprisonment for every GBP CARDINAL outstanding .

Section CARDINAL of ORG LAW DATE provides that :

“ ( CARDINAL ) Where in any proceedings against a person for an offence , evidence is given that the accused–

( a ) at any time before he was charged with the offence , on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed , failed to mention any fact relied on in his defence in those proceedings ;

being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned , charged or informed , as the case may be , subsection ( CARDINAL ) below applies .

( CARDINAL ) Where this subsection applies

( d ) the court or jury , in determining whether the accused is guilty of the offence charged ,

may draw such inferences from the failure as appear proper .

( CARDINAL ) Subject to any directions by the court , evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention .

Section CARDINAL ) provides that :

“ A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section GPE ) ... ”

A number of domestic cases have considered the application of LAW in practice . In NORP v PERSON ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) , Lord PERSON set out CARDINAL “ essentials ” when making a direction on adverse inferences :

“ We consider that the specimen direction is in general terms a sound guide . It may be necessary to adapt it to the particular circumstances of an individual case . But there are certain essentials which we would highlight :

The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the standard required is .

It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent . That is his right and his choice .

An inference from failure to give evidence can not on its own prove guilt . That is expressly stated in section CARDINAL ) of the LAW .

Therefore , the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence . Of course , the judge must have thought so or the question whether the defendant was to give evidence would not have arisen . But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case . It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant ’s silence .

NORP If despite any evidence relied upon to explain his silence or in the absence of any such evidence , the jury conclude the silence can only sensibly be attributed to the defendant ’s having no answer or none that would stand up to cross - examination , they may draw an adverse inference . ”

Subsequently , in NORP v. ORG ( [ DATE ] Criminal Appeal Reports CARDINAL ) , Lord PERSON added a sixth condition that had to be met before section CARDINAL of the DATE Act would allow inferences to be drawn :

“ The sixth condition is that the appellant failed to mention a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when questioned . The time referred to is the time of questioning , and account must be taken of all the relevant circumstances existing at the time . The courts should not construe the expression ‘ in the LOC restrictively : matters such as the time of day , the defendant ’s age , experience , mental capacity , state of health , sobriety , tiredness , knowledge , personality and legal advice are all part of the relevant circumstances ; and those are only examples of things which may be relevant ...

Like so many other questions in criminal trials this is a question to be resolved by the jury in the exercise of their collective common - sense , experience and understanding of human nature . Sometimes they may conclude that it was reasonable for the defendant to have held his peace for a host of reasons , such as he was ... worried at committing himself without legal advice , acting on legal advice , or some other reason accepted by the jury . ”

Guidance as to the direction which the judge should give the jury in respect of section CARDINAL of ORG LAW DATE is provided by ORG , which provides specimen directions . The present specimen direction on section CARDINAL is based on the CARDINAL ‘ ORG listed in PERSON , as applied in subsequent section CARDINAL cases before the domestic courts , including R v. ORG , and by this ORG in PERSON v. the GPE , DATE , Reports of Judgments and Decisions DATE and ORG v. GPE , no . CARDINAL , ORG CARDINALV ) .

The ORG specimen direction , which was last amended in DATE , prior to the applicant ’s second appeal , provides as follows ( the sections in bold indicate substantive differences from the version of the guidelines in force at the time of the applicant ’s trial ) :

“ CARDINAL . Before his interview(s ) the defendant was cautioned ... He was first told that he need not say anything . It was therefore his right to remain silent . However , he was also told that it might harm his defence if he did not mention when questioned something which he later relied on in court ; and that anything he did say might be given in evidence .

As part of his defence , the defendant has relied upon ( here specify the facts to which this direction applies - see Note CARDINAL ) . But [ the prosecution say][he admits ] that he failed to mention these facts when he was interviewed about the offence(s ) . [ If you are sure that is so , this / This ] failure may count against him . This is because you may draw the conclusion ... from his failure that he [ had no answer then / had no answer that he then believed would stand up to scrutiny / has since invented his account / has since tailored his account to fit the prosecution ’s PERSON refer to any other reasonable inferences contended for ... ) ] . If you do draw that conclusion , you must not convict him wholly or mainly on the strength of it ... ; but you may take it into account as some additional support for the prosecution ’s case ... and when deciding whether his [ evidence / case ] about these facts is true .

However , you may draw such a conclusion against him only if you think it is a fair and proper conclusion , and you are satisfied CARDINAL things : first , that when he was interviewed he could reasonably have been expected to mention the facts on which he now relies ; second , that the only sensible explanation for his failure to do so is that he had no answer at the time or none that would stand up to scrutiny ... ; third , that apart from his failure to mention those facts , the prosecution ’s case against him is so strong that it clearly calls for an answer by him ...

ORG ( Add , if appropriate : ) The defence invite you not to draw any conclusion from the defendant ’s silence , on the basis of the following evidence ( here set out the evidence ... ) . If you [ accept this evidence and ] think this amounts to a reason why you should not draw any conclusion from his silence , do not do so . Otherwise , subject to what I have said , you may do so . ”


Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Peer Lorenzen

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

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

The applicant was in the area of ORG , GPE , from CARDINAL to CARDINAL DATE . He went to a discotheque in TIME and said he had left between CARDINAL a.m. and TIME When he left the discotheque , an unknown person hit him in the face and he fell to the ground . The applicant took a taxi and went back to his hotel , where he was sharing a room with QUANTITY friends .

On DATE Mr P reported to the police that at TIME an unknown person had had an argument with him and kicked his car , which was parked in front of the discotheque , and damaged it .

The following day the applicant returned to GPE by train . He was apprehended by the police , on account of his visible injuries , on suspicion of having participated in a fight . The police took CARDINAL photographs of him . The applicant explained to the police what had happened to him but did not want to file an official complaint against the person who had hit him , as he thought it would not be possible to find the person .

On DATE T , a barkeeper in the discotheque and a friend of P , was heard as a witness to the incident in which P ’s car had been damaged . He stated that he had not witnessed the incident but remembered seeing a young man and had been told by P that it was that young man who had kicked the car .

On DATE T was shown the photos of the applicant taken by the police . He said it was the person who had had the argument with P.

On DATE P was also shown the same photos and stated that the applicant was the person who had kicked his car .

On DATE an official notice of a criminal act , apparently together with a sheet of the applicant ’s personal data , was sent to ORG , who filed an indictment ( Antrag auf Bestrafung ) on DATE .

On DATE a provisional penal order ( Strafverfügung ) was issued by the PERSON am GPE ORG ( “ the ORG ” ) . The applicant was considered guilty of having wilfully damaged a car on DATE . He was sentenced to a fine totalling CARDINAL NORP schillings ( MONEY ( ORG ) ) , suspended on probation .

According to the law , a provisional penal order had to be served personally on the addressee . The first attempt to serve the provisional penal order on the applicant failed . Although the applicant had a registered address in N between DATE and DATE , the provisional penal order was returned to ORG with a note that the applicant no longer lived at the address in N and had left a post office box address to which his mail should be forwarded .

On DATE ORG found that service of the provisional penal order at a post office box address was not lawful service and decided to adjourn the proceedings and asked the police to locate the applicant . ORG received a letter from the local police station saying that the applicant did not live anywhere in the area .

By a letter dated DATE , ORG in GPE , GPE , asked ORG about the outcome of the case . ORG replied on DATE that a provisional penal order had been issued but could not be served on the applicant and had thus not become final .

On DATE , ORG renewed the request to the police to locate the applicant . By a letter of DATE , the Strass i m NORP police station informed the court that the accused ’s personal data had been entered in FAC and that a search in the data station had been ordered to find out the applicant ’s place of abode .

By a letter dated CARDINAL DATE ORG in GPE notified ORG of the applicant ’s registered address in W and stated that the applicant had been registered at that address since DATE .

On DATE the applicant was served with the provisional penal order together with a notice informing him that if objections were lodged against the provisional penal order within DATE of service , it would become void and a regular trial would be held .

The applicant lodged objections on DATE .

On DATE the file was transmitted to ORG at the PERSON am GPE ORG for her observations regarding a preliminary settlement ( Diversion ) .

The trial before ORG started on DATE . P was heard as a witness and the court asked him whether the applicant had kicked his car in DATE . P stated that he could not remember whether the applicant had been the perpetrator and confirmed that when he had been shown the photos of the applicant on DATE he had been certain that it had been the applicant who had kicked his car .

The applicant asked for evidence to be heard from the CARDINAL friends with whom he had shared the hotel room . As they lived in GPE , ORG adjourned the hearing and on DATE issued letters rogatory , asking the NORP authorities to hear the witnesses . The public prosecution office in GPE sent back the witness statements on DATE . The witnesses had stated that they could not remember the applicant having returned to the hotel room at TIME

On DATE the trial continued . The applicant was not represented by counsel . The judge had the witness statements as submitted by the public prosecution office in GPE read out . Relying on the witness statements of P and the applicant ’s friends , the barkeeper ’s statement and the notification from the LOC police station , ORG found the applicant guilty of having damaged P ’s car on DATE and sentenced him to a fine totalling ORG CARDINAL,CARDINAL ( CARDINAL per diem rates of ORG CARDINAL each ) , suspended on probation for DATE , ordered him to pay the costs of the trial and ordered him to compensate P for the damage to his car .

On DATE the judgment was served on the applicant ’s counsel . An appeal on points of law and fact , as well as against sentence , and an appeal against the obligation to pay damages ( Berufung wegen GPE , PERSON gegen den Privatbeteiligtenzuspruch ) was lodged on DATE .

On DATE the Innsbruck ORG set aside the judgment on grounds of nullity as ORG had failed to obtain the applicant ’s consent to have the witness statements read out .

On DATE a new trial was held . CARDINAL of the applicant ’s friends , who had been named as a witness , did not appear before the court . The other friend did appear and made a statement to the effect that he could not remember any details of the period when the incident had occurred . He also confirmed that when he had been heard by the NORP authorities after the NORP court had issued the letters rogatory , he had told the truth . The barkeeper T was also heard as a witness . He stated that he did not remember what he had told the police when he gave his statements on DATE and DATE , but was certain that he had told the truth .

After an adjournment , the trial continued on DATE . As the judge had changed , the trial started afresh . T , P and the applicant ’s friend who had not appeared before the court on DATE were heard as witnesses and , in essence , upheld their previous statements . ORG , relying on T ’s and P ’s statements , again found the applicant guilty and sentenced him to a fine totalling ORG CARDINAL,CARDINAL ( CARDINAL per diem rates of ORG CARDINAL each ) , suspended on probation for DATE , and ordered him to pay the costs of the trial . P was ordered to claim damages for the car in the civil courts .

The applicant appealed on points of law and fact , as well as against sentence , on DATE . On DATE the Innsbruck ORG upheld the judgment . The decision was served on applicant ’s counsel on CARDINAL DATE .


Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Impartial tribunal);Pecuniary damage - claim dismissed (Article 41 - Causal link;Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Julia Laffranque;Karel Jungwiert;Mark Villiger

The applicant was born in DATE and lives in GPE .

The case originated in a labour dispute following the applicant ’s transfer to a different post within a company providing electro - installation ( hereinafter referred to as “ the company ” ) . Subsequently , the applicant lodged several claims with ORG requesting , inter alia , the annulment of the transfer decision , and payment of the difference in salary .

On DATE the first - instance court gave a decision upholding the applicant ’s claims . The company appealed . On DATE the second - instance court upheld the company ’s appeal and remitted the case for fresh examination .

On DATE ORG issued a decision whereby it upheld the applicant ’s claims and annulled the transfer decision . It found that the transfer was related to the applicant ’s involvement in trade union activities and his efforts to improve human relations in the company . The company , in the court ’s view , had failed to demonstrate that there were work - related needs which called for a transfer . The court adjudicated that the applicant should be paid the difference in salary . The company appealed .

On DATE ORG upheld the appeal . The CARDINAL - judge panel , presided over by judge PERSON , found that the first - instance court had failed to provide adequate reasoning in its decision ; in particular , it had failed to explore whether lawful grounds for the transfer existed , such as an increased need for resources with respect to the applicant ’s new post . In the Higher Court ’s view , the lower court should examine the director and the chief of commerce as witnesses . The case was remitted for fresh examination .

On DATE ORG stayed the proceedings since bankruptcy proceedings had been instituted against the company .

Subsequently , the court repeatedly requested the applicant to inform it of the progress of the proceedings relating to the company ’s bankruptcy and to specify whether he still had an interest in pursing the proceedings in his case . The applicant supplied the required information concerning the outcome of the bankruptcy proceedings on DATE , and requested that the proceedings in his case be continued .

On DATE the court resumed the proceedings in so far as they concerned the allegedly unlawful transfer to another post and loss of salary , and dismissed the remaining claims . The applicant lodged an appeal and an appeal on points of law . Both were rejected .

On DATE ORG , after holding CARDINAL hearings and examining witnesses , issued a judgment dismissing the applicant ’s claims . It found that the applicant ’s transfer to a different post within the company had been lawfully based on the company ’s need to adapt to changes in the market , and that he was therefore not entitled to any compensation . The applicant appealed .

On DATE ORG rejected the appeal and upheld ORG judgment . The applicant lodged an appeal on points of law in which he complained about , inter alia , not being present at one of the hearings , and his claims being previously upheld but eventually rejected owing to improper conduct of the court ’s proceedings .

On DATE ORG , sitting as a panel of CARDINAL judges , CARDINAL of whom was judge PERSON , rejected the appeal on points of law , finding that the lower courts had not committed any errors in the application of the procedural rules and that the applicant had been provided with an opportunity to participate in all hearings . It also noted that the previous court ’s decisions had been quashed because they had been found to be erroneous . Lastly , ORG found that the relevant substantive law had been properly applied to the facts of the case as established by the lower courts .

On DATE , the applicant lodged a constitutional appeal in which he disputed the findings of ORG and complained that the proceedings had been biased because of the involvement of judge PERSON , who had previously decided in favour of the company ’s appeal .

On DATE ORG rejected the appeal on procedural grounds , stating that on account of the terminated bankruptcy proceedings against the company and the fact that the company had been deleted from the register of companies , the applicant no longer had any legal interest . The decision was served on the applicant on DATE .

Further to the ORG ’s communication of the present application to the respondent Government , ORG informed the applicant that no settlement offer would be made . The ORG considered that no violation of the right to a trial within a reasonable time had occurred in his case . That letter was served on the applicant on DATE .

On DATE the applicant initiated proceedings before ORG , claiming damages for undue delays in the above - mentioned labour proceedings . He referred to LAW without undue Delay ( “ the CARDINAL Act ” ) and on that basis claimed LAW for non - pecuniary damage . He further claimed ORG CARDINAL for non - pecuniary damage on the basis of LAW .

NORP The court held a hearing on DATE . On DATE it issued a judgment rejecting the applicant ’s claim for ORG CARDINAL,CARDINAL , finding that it had no basis in law . As regards the claim for LAW , the court found that it had jurisdiction to decide on it as the case fell under LAW . However , the court dismissed the claim as it had been lodged outside the DATE time - limit provided for by paragraph QUANTITY of LAW . It found that the applicant had received the letter from ORG on DATE and should therefore have lodged the compensation claim under LAW no later than CARDINAL DATE . The applicant did not appeal .

The relevant provisions of LAW ( Official consolidated version UPBCARDINAL , ORG no . CARDINAL/CARDINAL ) read as follows :

“ A judge or a lay judge shall be prohibited from exercising judicial functions :

( CARDINAL ) if he or she has participated in the same proceedings before a lower court ...

( CARDINAL ) NORP if other circumstances raise doubts about his or her impartiality . ”

“ If a judge or a lay judge discovers that there exists a reason for exclusion mentioned in CARDINAL of points CARDINAL to CARDINAL of section QUANTITY , he or she must immediately cease to perform any work in the case and must notify the President of the court , who shall appoint a replacement judge .

As regards the remedies before ORG , see paragraphs CARDINAL of ORG and PERSON GPE , nos . CARDINAL/CARDINAL and CARDINAL , DATE . For the relevant provisions of the CARDINAL Act , see GPE v. GPE , ( dec . ) no . CARDINAL , § § DATE , DATE .


Violation of Art. 6-1 (access);Not necessary to examine Art. 6-1 (publicly);Damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

ORG Mr PERSON lives at GPE , near PERSON .

ORG On DATE ORG municipal council granted PERSON ORG planning permission for the construction of new commercial premises , subject to various detailed conditions : CARDINAL groceries should be built , each with appropriate commercial and sanitary amenities and separate entrances ; and a dividing wall was to be erected between the CARDINAL shops .

At a later stage the applicant informed the council that he was envisaging opening a supermarket on the LOC , whereupon the council drew his attention to the specifications in the planning permission , which allowed only for CARDINAL different smaller shops to be built , with separate entrances and divided by a party wall . They further warned the applicant that failure to comply with these specifications would result in the works being immediately halted .

ORG On DATE the council ordered the applicant to suspend the works . An inspection of the site had shown that , contrary to the terms of the planning permission , CARDINAL larger shop was being built instead of the CARDINAL smaller ones . The applicant had thus disregarded several conditions of the planning permission .

ORG On DATE the PERSON district authority ( ORG ) served a " sentence order " ( PERSON ) on the applicant pursuant to sections CARDINAL(CARDINAL)(a ) and CARDINAL(CARDINAL ) of LAW ( Tiroler PERSON - see paragraph CARDINAL below ) . According to the order , it had been established that the applicant had not only failed to erect the party wall as well as certain amenities , but had also opened an additional entrance , considerably enlarged the LOC , built an additional wall and created CARDINAL large shop instead of the CARDINAL smaller ones originally planned . In so doing , the applicant had carried out works without planning permission .

Mr PERSON was ordered to pay a fine of CARDINAL NORP schillings ( ORG ) with DATE imprisonment in default of payment , plus costs . An appeal by him to the LOC regional government ( ORG PERSON ) was dismissed on DATE on the ground , among others , that the works carried out by the applicant not only failed to comply with the permission granted but were in part illegal .

ORG Mr PERSON then applied to ORG ) , alleging , inter alia , a violation of LAW ) of the LAW in that he had not been able to bring his case , or have an oral hearing held , before a tribunal which conformed with that provision ( article CARDINAL ) . On DATE ORG declined to accept the case for adjudication under LAW para . CARDINAL of LAW ( Bundes- Verfassungsgesetz - see paragraph CARDINAL below ) as raising questions concerning the application of ordinary law ( einfaches PERSON ) ; in so far as the complaint did raise issues of constitutional law , ORG found that the application did not have sufficient prospects of success .

ORG The applicant then requested to have his case transferred to ORG ( Verwaltungsgerichtshof ) , with which grounds of appeal against the administrative authorities ' decision were subsequently lodged .

ORG On DATE the applicant 's appeal was dismissed by ORG pursuant to section CARDINAL(CARDINAL ) of LAW ( Verwaltungsgerichtshofsgesetz - see paragraph CARDINAL below ) . With regard to the complaints concerning LAW , the court pointed out that LAW ( GPE ) did not confer a general right to a hearing before the administrative authorities . Only in special circumstances was a hearing to be held .

ORG then dealt with the remaining complaints as follows :

" The applicant further submitted that the impugned decision dealt only with the obligation , noted in the decision at first instance , to obtain permission not to erect the dividing wall , and not with the obligation to obtain permission for the other - in his view minimal - failures to comply with the plan . But as , he maintained , the question whether these other failures to comply with the plan might lead to the applicant 's being punished was of importance if the failure to erect the wall was not punishable , the reasoning was inadequate . This submission is inaccurate , because the respondent authority did in fact , as it was entitled to do , take it for granted that planning permission was necessary for all the measures mentioned in the original decision . The major building works undertaken by the applicant were , as the file shows , not covered by permission from the planning authorities . There was also clearly a consistent intention to go ahead and build in disregard of the planning regulations . The applicant further overlooks that , quite apart from the principle that planning permission was necessary for such a building project , permission could never have been given for a shopping centre such as was built in the instant case , having regard to the provision in section CARDINAL(b ) of the Tyrol Town and Country Planning Act , which was declared constitutional by ORG in a decision ( B CARDINAL/CARDINAL ) of DATE .

During the planning - application proceedings Mr GPE acted as the applicant for planning permission and as the owner of the land and the building on it . The [ Z. ] firm put itself forward as the future user of the building . The applicant never disputed during the administrative criminal proceedings that he was the person for whom the building was being constructed and that he was thus liable in administrative criminal law . His submission that the dividing wall was not built not on his orders but on those of the [ Z. ] firm that was using the commercial premises can therefore not exonerate him as he bore the responsibility for accepting and carrying out the orders of the future occupier . The suggestion set out for the first time in the statement of facts in the supplementary application that the building was being constructed for another firm is a new submission that is inadmissible in administrative proceedings by virtue of CARDINAL ) of LAW .

It was further submitted that the suspension of the building works that had been ordered had made it impossible to erect the dividing wall , although this could have been done without substantial expenditure even after the building work had stopped , so that there had been no negligence .

This submission likewise can not assist the applicant . As the evidence and the applicant 's submission clearly show , there had been no intention to build the dividing wall even before building work was suspended ; on the contrary , the applicant deliberately refrained from doing so in order to secure a review of section CARDINAL(b ) of the Tyrol Town and Country Planning Act by ORG . Furthermore , at the time when the building works were suspended , there were other important failures to comply with the planning permission for which approval would have been needed ( see in the statement of facts the details of the findings made by the authority on DATE during an inspection of the works ) . The subsequent suspension of building work is accordingly of no legal significance in the present context .

The respondent authority also rightly noted that the very fact of the repeatedly expressed intention not to erect the dividing wall and to maintain the building in issue in a state that did not comply with the planning permission and for which no approval had been given showed that there had been culpable intent . Similarly , as the respondent authority rightly recognised , the theoretical possibility that ORG might declare section CARDINAL(b ) of the Tyrol ORG unconstitutional can not be prayed in aid as a mitigating circumstance . Contrary to the applicant 's submissions , this purpose could have been achieved other than through failing to comply with the planning permission by not erecting the dividing wall and carrying out unauthorised works . It was open to the applicant at the outset to make an application for planning permission to build large - scale commercial LOC , a shopping centre , and in this way challenge section CARDINAL(b ) of the Tyrol Town and Country Planning Act in ORG . The submission on this point therefore fails .

As to the submission that , contrary to what was stated in the impugned decision , the authority ( municipal council ) had agreed to the dividing wall not being built after a report had been made by a fire - safety expert , the applicant is referred to the evidence given by the chairman of the municipal council and to the note for the file made by him on DATE of the meeting , from which it is quite clear that there was disagreement between the participants over the question whether authorisation was needed not to build the dividing wall and that the applicant was expressly warned by the municipal council that under LAW of FAC read together with section CARDINAL(b ) of the Tyrol Town and Country Planning Act , a building scheme that was altered in this way could not be authorised . The applicant is mistaken in suggesting that the statement made by the legal representative of the [ Z. ] firm , who was also present at the meeting , constitutes a ground for excluding his guilt . From the observations filed by counsel for the applicant on the evidence given by the chairman of the municipal council it appears that the whole question of suspending the building works and the issue of the constitutionality of section CARDINAL(b ) of the Tyrol Town and Country Planning Act were discussed and the possibility of challenging that provision in ORG envisaged . The municipal council was allegedly made aware of this ' outcome of the negotiations ' . The applicant himself , however , states in his application that there was disagreement among those taking part in the discussions as to the question of the need for authorisation not to build the dividing wall , with the municipal council assuming that such authorisation was necessary whereas the representative of the [ Z. ] firm assumed it was sufficient merely to report the fact . The applicant thus himself admits that , contrary to later statements in the application and in the observations on the evidence given by the chairman of the municipal council , no agreement was reached between the municipal council and the applicant , so that the assumption that there was a ground here for excluding the applicant 's guilt is invalid on this ground alone . Nor can ORG find that the respondent authority committed any significant procedural irregularities in this respect in the reasons given for the impugned decision . The submission on this point is accordingly unfounded .

The respondent authority dealt at length and accurately with the grounds for the assessment of punishment and with the assessment of punishment in general , so that it can not be criticised in this respect either .

Section CARDINAL(CARDINAL)(a ) of FAC ( ORG ) DATE provides :

" It shall be an administrative offence ( PERSON )

( a ) to carry out without planning permission a building project that requires planning permission ... "

Section CARDINAL(CARDINAL ) provides :

" The administrative offences set out in paragraph CARDINAL shall be punishable with a fine not exceeding ATS CARDINAL or with imprisonment for DATE ... "

Section CARDINAL of the same LAW provides :

" The authorities ' permission is required in the following cases :

( a ) new building , extensions and conversions ; and

( b ) alterations to buildings or parts of buildings in so far as they affect the building 's structural soundness , its safety in the event of fire , its plumbing or its external aspect ... "

ORG Article CARDINAL para . CARDINAL of LAW ( Bundes - Verfassungsgesetz ) provides :

" Hearings by trial courts in civil and criminal cases shall be oral and public . Exceptions may be prescribed by law . "

ORG By Article CARDINAL para . CARDINAL of LAW , ORG , when an application ( Beschwerde ) is made to it , has to determine whether an administrative decision ( Bescheid ) has infringed a right guaranteed by the LAW or has applied regulations ( Verordnung ) contrary to the law , a law contrary to LAW or an international treaty incompatible with NORP law .

Article CARDINAL para . CARDINAL provides :

" Up to the time of the hearing ORG may by means of a decision ( ORG ) decline to accept a case for adjudication if it does not have sufficient prospects of success or if it can not be expected that the judgment will clarify an issue of constitutional law . The court may not decline to accept for adjudication a case excluded from the jurisdiction of ORG by Article CARDINAL . "

ORG By LAW para . CARDINAL of LAW , ORG has jurisdiction to hear , inter alia , applications alleging that an administrative decision is unlawful .

Section CARDINAL(CARDINAL ) of the Administrative Court Act provides that at the end of the preliminary proceedings ( GPE ) ORG must hold a hearing where the applicant makes a request to that effect .

Section CARDINAL(CARDINAL ) reads as follows :

" Notwithstanding a party 's application under subsection ( CARDINAL ) , ORG may decide not to hold a hearing where

ORG the proceedings must be stayed ( section CARDINAL ) or the application dismissed ( section CARDINAL ) ;

ORG the impugned decision must be quashed as unlawful because the respondent authority lacked jurisdiction ( section CARDINAL(CARDINAL)(CARDINAL ) ) ;

ORG the impugned decision must be quashed as unlawful on account of a breach of procedural rules ( section CARDINAL(CARDINAL)(CARDINAL ) ) ;

ORG the impugned decision must be quashed because its content is unlawful according to the established case - law of ORG ;

ORG neither the respondent authority nor any other party before the court has filed pleadings in reply and the impugned decision is to be quashed ;

ORG it is apparent to the court from the pleadings of the parties to the proceedings before it and from the files relating to the earlier administrative proceedings that a hearing is not likely to clarify the case further . "

ORG - paragraphs CARDINAL of section CARDINAL ) were in force in DATE ; sub - paragraphs CARDINAL and CARDINAL were inserted in DATE and sub - paragraph CARDINAL in DATE .

Section CARDINAL(CARDINAL ) of the Administrative Court Act provides :

" In so far as ORG does not find any unlawfulness deriving from the respondent authority 's lack of jurisdiction or from breaches of procedural rules ( section CARDINAL(CARDINAL)(CARDINAL ) and ( CARDINAL ) ) ... , it must examine the impugned decision on the basis of the facts found by the respondent authority and with reference to the complaints put forward ... If it considers that reasons which have not yet been notified to CARDINAL of the parties might be decisive for ruling on [ CARDINAL of these complaints ] ... , it must hear the parties on this point and adjourn the proceedings if necessary . "

Section CARDINAL(CARDINAL ) of the same LAW states that , save as otherwise provided , ORG must either dismiss an application as ill - founded or quash the impugned decision .

By section ORG ) :

" The Administrative Court shall quash the impugned decision if it is unlawful

ORG by reason of its content , [ or ]

ORG because the respondent authority lacked jurisdiction , [ or ]

ORG on account of a breach of procedural rules , in that

( a ) the respondent authority has made findings of fact which are , in an important respect , contradicted by the case file , or

( b ) the facts require further investigation on an important point , or

( c ) procedural rules have been disregarded , compliance with which could have led to a different decision by the respondent authority . "

ORG If ORG quashes the impugned decision , " the administrative authorities [ are ] under a duty ... to take immediate steps , using the legal means available to them , to bring about in the specific case the legal situation which corresponds to ORG view of the law ( PERSON ) " ( section CARDINAL(CARDINAL ) ) .

ORG In a judgment of CARDINAL DATE ( G CARDINAL/CARDINAL ) ORG held :

" From the fact that it has been necessary to extend the reservation in respect of LAW to cover the procedural safeguards of LAW article CARDINAL ) of the LAW , because of the connection between those CARDINAL provisions ( article CARDINAL , article CARDINAL ) , it follows that , conversely , the limited review ( die ( bloß ) nachprüfende PERSON ) carried out by ORG or ORG is insufficient in respect of criminal penalties within the meaning of the Convention that are not covered by the reservation . "

ORG Pursuant to LAW , administrative courts called " independent administrative tribunals " ( ORG ) were set up in the Länder with effect from DATE . The functions of these tribunals include determining both the factual and the legal issues arising in cases concerning administrative offences ( ORG ) .

ORG The instrument of ratification of the Convention deposited by ORG on DATE contains , inter alia , a reservation worded as follows :

" The provisions of LAW shall be so applied that there shall be no interference with the measures for the deprivation of liberty prescribed in the laws on administrative procedure , BGBl [ ORG ] No . CARDINAL , subject to review by ORG or ORG as provided for in LAW . "