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

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

The applicant was born in DATE and lives in GPE . At the material time she had been working as a judge for DATE .

From DATE the applicant held judicial office at ORG .

NORP In DATE the applicant was appointed to sit on a criminal case concerning abuse of powers by a police investigator , PERSON . He was accused of carrying out unlawful searches while investigating a case of large - scale customs and financial fraud involving a group of companies and , allegedly , certain high - ranking state officials .

NORP In DATE the court , composed of the applicant as judge and CARDINAL lay assessors , PERSON and PERSON , began to examine the case . During the hearing on DATE the court invited the public prosecutor to present evidence for the prosecution . He replied that the court had failed to ensure the attendance of the prosecution witnesses and objected to the manner in which the proceedings were being conducted . On DATE , DATE , he challenged the applicant as judge on the grounds of bias which she had allegedly shown when questioning CARDINAL of the victims . Other parties to the proceedings , including the victim in question , objected to the challenge . On DATE the lay assessors dismissed the challenge , following which the public prosecutor challenged both lay assessors . The parties to the proceedings objected to the challenge and it was dismissed . On DATE the prosecutor filed another challenge to the lay assessors on the grounds of bias , which was also dismissed by the applicant on DATE .

On DATE both lay assessors filed a motion to withdraw from the proceedings .

On DATE the public prosecutor declared that the minutes of the proceedings were being kept incorrectly and requested access to the records . The court refused his motion , on the grounds that the minutes could be accessed within DATE of their completion .

On DATE the applicant allowed the withdrawal of both lay assessors , having found as follows :

“ At the hearing the lay assessors I and D declared their withdrawal from the proceedings , on the grounds that they were unable to participate in the examination of the case because of the [ public prosecutor ’s ] biased and discourteous behaviour towards them and due to the perverse environment at the hearing , for which he is responsible and which made them ill . ”

According to the applicant , ORG President , PERSON , then during the proceedings called the applicant to her office and asked her about the details of the proceedings , putting certain questions regarding the conduct of the trial and the decisions on the above motions .

The parties disagree on the circumstances of the applicant ’s withdrawal from the case . According to the applicant , ORG President removed her from sitting in the case on DATE , DATE after the lay assessors’ withdrawal . According to the Government , the case remained with the applicant until DATE , when it was withdrawn from her by ORG President on the grounds that she had delayed forming a new court composition and that there was a risk of further delay in view of her request for DATE leave from DATE to CARDINAL DATE , filed on DATE .

On DATE the ORG President assigned the case to judge M.

The applicant subsequently sat as a judge in several other criminal cases .

NORP In DATE the applicant submitted her candidature in general elections for ORG of GPE . Her election campaign included a programme for judicial reform .

On DATE ORG granted the applicant ’s request for suspension from her judicial functions pending the elections in which she was standing as a candidate .

On DATE the applicant gave an interview to the radio station PERSON , which was broadcast on DATE . She made the following statements :

“ Ekho Moskvy ( EM ) : ... it has come to our knowledge that an acting judge of ORG has expressed criticism of the existing judicial system and mentioned certain instances of pressure being exerted on the court ...

PERSON ( OK ) : Indeed . DATE of working in ORG have led me to doubt the existence of independent courts in GPE . Instances of a court being put under pressure to take a certain decision are not that rare , not only in cases of great public interest but also in cases encroaching on the interests of certain individuals of consequence or of particular groups .

EM : So what about that case in which you were confronted with such bare and ruthless pressure , what was it ?

OK : Some of you have probably heard about the criminal case concerning the smuggling of furniture which was subsequently sold in the large GPE shopping centres ‘ LOC Kita’ and ‘ PERSON . The damage caused by this crime , as the investigation has revealed , amounted to MONEY . Among those who came within the sights of the investigators , led by GPE , were extremely influential and prominent people . This case received great publicity after ORG hastily withdrew the file from the investigation unit of ORG and charged the investigator PERSON [ with abuse of official powers ] .

EM : So you examined GPE ’s case , and not that of the furniture dealers ?

OK : Yes , [ the case ] against GPE . First ORG examined the case and acquitted him . What is more , the court expressly stated in the judgment that the office of ORG itself sometimes failed to conform to , or was in direct breach of , the law . The reputation of ORG had been publicly challenged .

EM : And the judgment was quashed , as I remember ?

OK : Yes , it was . The Panel of ORG reversed the judgment and remitted it to ORG for a fresh examination .

EM : And you received the case ?

OK : Yes . The Panel of ORG in its decision indicated the points to be taken account of in the new proceedings .

EM : So far as I know you were unable to hear the case to the end ... What happened ?

OK : In the course of the examination the case was withdrawn from me by ORG President , PERSON , without any explanation .

EM : What happened just before the withdrawal ?

OK : During the hearing the court was considering the evidence for the prosecution and started to cross - examine the victims . However , the public prosecutor , a representative of ORG , must have reckoned that the GPE testimonies ran contrary to the prosecution ’s version of events . He therefore attempted to bring the proceedings to naught . In DATE in the judiciary this was the first time that I was confronted with such behaviour ... he was trying to keep the court within the strict bounds of the questions he thought the court ought to ask the victims ... if the court went beyond these limits he started challenging the court and bombarding it with unreasoned requests .

EM : ... what are judges supposed to do in such a situation , when a party to the proceedings acts in breach of the law ? Can you seek help , support or at least advice ?

OK : Yes , the court ... could request ORG to replace the public prosecutor on the grounds of undue conduct in the proceedings . But at that very moment the court president called me to her office .

EM : How come the court president could intervene in the proceedings ?

OK : Of course she could not . Criminal procedure in GPE is adversarial ; in accordance with the law the court acts neither for the prosecution nor for the defence ... Here , it was expressly brought home to me that the President of ORG and the agent of ORG had common cause in this case .

EM : ... do you think this case was exceptional or is this a widespread phenomenon ?

OK : No , as far as I am aware , this is not the only case where the courts of law are used as an instrument of commercial , political or personal manipulation . This is a dangerous state of affairs because no one can rest assured that his case – whether civil or criminal or administrative – will be resolved in accordance with the law , and not just to please someone ... I do realise what kind of statement I have just made . But if all judges keep quiet this country may soon end up in a [ state of ] judicial lawlessness . ”

On DATE CARDINAL newspapers – ORG and ORG published interviews with the applicant .

NORP The interview with ORG , in so far as relevant , read as follows :

“ ... Over DATE working in the courts of law I have ... dealt with various cases : civil , criminal and administrative . Having examined CARDINAL , if not CARDINAL , of cases ... I have seen a bit of everything , I know the judicial system inside out . I would not have imagined anything like what happened between me and PERSON . In LOC , by the way , the courts are much purer than in GPE . There you can not imagine such brutal manipulation and would not be talking about corruption to such an extent .

This was not a conflict , but unprecedented pressure on justice . PERSON called me several times , whenever the prosecutor thought that the proceedings were not going the right way ; on the last occasion I was called out of the deliberations room , which is unheard of . Never in my life had I been shouted at like that . I would not have gone if I knew what I was being called for . ...

It was that conflict which made me consider changing my career , should I succeed in the elections . There is a job for me in the highest legislative body , namely the problems of justice . I doubt that any provincial courts would harbour scandals as outrageous as those in ORG , but this a question of degree , while the problems are more general .

A judge , although defined by law as the embodiment of judicial power and independent in this capacity , in fact often finds himself in a position of an ordinary clerk , a subordinate of a court president . The mechanism of how a decision is imposed on a judge is not to contact [ the judge ] directly : instead , a prosecutor or an interested person calls the court president , who then tries to talk the judge into a ‘ right’ decision , first gently , by offering advice or a professional opinion , then pushing him or her more strongly to take the ‘ correct’ decision , that is , one that is convenient to somebody . A judge , on the other hand , is dependant on the president for the DATE basics , such as accommodation grants , bonuses , and also the distribution of cases between the judges . The president can always find a flaw in the judge ’s work if he or she wishes ( as simple as exceeding judicial time - limits , a situation impossible to avoid in practice , given the volume of work ) . On these grounds the president may seek termination of the judge ’s office , which is decided upon by the qualification board , usually controlled by the same court bureaucrats . ... in reality a court still more often than not takes the position of the prosecution . The courts then become an instrument of commercial , political or personal manipulation .

No one can rest assured that his case DATE whether civil or criminal or administrative – will be resolved in accordance with the law , and not just to please someone . DATE it is investigator PERSON , investigating the smuggling of furniture , DATE it may be any one of us ... ”

The interview with ORG , in so far as relevant , read as follows :

“ PERSON : Why did you decide to stand for election ?

OK : Looking around , one is just stunned by the lawlessness . The law applies quite strictly to ordinary people , but this is not the case when it comes to persons holding important posts . But they break the law too . I would like to participate in making laws that would provide for real independence of the judicial power ...

ORG : What does the pressure look like in practice ?

OK : There is a kind of consultation , legal advice , usually in cases of great public interest . Sometimes this has a healthy pretext , such as academic debate . The judge expresses his position , and the deputy president replies . The court president rarely speaks to the judges directly . Through such conventions the court administration tests each judge to see how flexible he is , so that when it comes to [ the allocation of cases ] they know who can be entrusted with a delicate case and whom to avoid .

Izvestiya : So how exactly was pressure exerted on you ?

OK : The public prosecutor exerted pressure on me . You put a question to the victim , and he immediately challenges you . In DATE of practice I have not seen anything like it . PERSON was accused of abuse of official powers . He carried out a search without authorisation from a prosecutor . The law allows this in urgent cases , but the investigator must report to the prosecutor within TIME . PERSON reported to the prosecutor [ in time ] , and it was for the court to verify whether there had indeed been any urgency in conducting those searches . Therefore it was necessary to examine the criminal case files against the firms ‘ Grand’ and ‘ LOC Kita’ who were dealing in furniture . Through his constant objections , however , the public prosecutor would not allow the court to touch this subject ... ”

On DATE the general elections took place . The applicant was not elected .

On DATE ORG of GPE reinstated the applicant in her judicial functions as of DATE .

On DATE the applicant lodged the following complaint with the High Judiciary Qualification Panel :

“ I request that the President of ORG , PERSON , be charged with a disciplinary offence for exerting unlawful pressure on me in DATE , when I was presiding in the criminal proceedings against PERSON . She demanded that I give an account on the merits of this case while its examination was underway , and that I inform her about the decisions the court was about to take ; she even called me out of the deliberations room for that purpose . [ She ] insisted on removing certain documents from the case file , forced me to forge TIME of the hearing , and also recommended that I ask the lay assessors not to turn up for the hearing . Following my refusal to bow to this unlawful pressure [ she ] removed me from the proceedings and transferred the case to another judge .

As to the particular circumstances , they were as follows .

I was appointed to examine the case against GPE , and the court , acting in a bench with CARDINAL lay assessors , I and D , started its examination .

Having started the trial , the court questioned a number of victims . The public prosecutor who was representing ORG clearly decided that this questioning was not favourable to the prosecution and therefore did everything possible to disrupt the hearing . For no reason he challenged me as a judge , the lay assessors and the whole composition of the court . His motions were made in a manner that was humiliating , offensive and insulting to the court , and were clearly untrue . Soon after the challenge was rejected by the court , ORG President PERSON called me to her office .

In violation of LAW and section CARDINAL of the Law ‘ On the Status of a Judge in GPE , ORG President demanded an explanation from me as to why the lay assessors and I were putting CARDINAL or other question to the victims in the trial and why CARDINAL or other motion by the parties was refused or accepted . In my presence ORG President had a telephone conversation with the [ First Deputy Prosecutor General ] , who had issued the indictment against GPE . PERSON informed [ the First Deputy Prosecutor General ] that the judge was being called to account with regard to what was going on in the proceedings .

Back in my office I told the lay assessors what had happened . By then they were already reduced to despair by the repeated groundless objections and insulting challenges against them on the part of the public prosecutor , and they therefore considered it impossible to continue to take part in the proceedings . CARDINAL of the assessors , PERSON , was seeking medical assistance for a health problem . For these reasons they decided to withdraw from the proceedings and to state frankly in their request that the reason for their withdrawal was the pressure put on them by the agent of ORG .

At the court ’s following meeting the lay assessors announced their withdrawal on the above grounds . Their written requests were given to me to be enclosed in the file , and the court adjourned for deliberations .

I was again called from the deliberations room by ORG President , PERSON . This time she demanded that I explain what we were doing in the deliberations room and what decisions we were going to take . Her main point was that there should have been no mention in the ORG written requests that the reason for their withdrawal was pressure being exerted on the court . ORG President also insisted on excluding from TIME any mention of the behaviour by the public prosecutor which the assessors had regarded as pressure . In essence , PERSON was pushing me to forge the case file . Moreover , she proposed that I ensure that the assessors did not turn up for the hearing , literally ‘ ask them not to come to the court any ORG . The aim was obvious – if the assessors [ did ] not appear the proceedings themselves [ would ] fall apart . It seemed that for some reason [ she ] did not want the case to continue to be examined in this composition . The unlawfulness of ORG President ’s actions was obvious .

I followed none of her instructions . The lay assessors’ requests were included in the file , the court allowed their withdrawal and stated that the reason for it was the pressure being applied by ORG . The hearing TIME reflected everything that happened in the proceedings .

Once I signed [ the minutes ] PERSON withdrew the case from me and transferred it to another judge without stating reasons .

I consider that such acts on the part of ORG President , PERSON , are incompatible with the status of a judge and undermine judicial authority , and are thus destructive for justice , for which she must be held liable . This is what I hereby request from ORG of GPE . ”

On DATE PERSON , one of the lay assessors who had , on DATE , withdrawn from the criminal case against PERSON , sent a letter to ORG in support of the applicant :

“ Further to the publication of an interview with judge PERSON ... I decided to write you because I participated in GPE ’s case as a lay assessor .

I entirely support everything judge PERSON said in her interview .

During the trial the [ public prosecutor ] did everything to prevent the court from hearing the case . He was rude and aggressive to the court ; in his interventions and requests he deliberately misrepresented what was going on in the proceedings , and he repeatedly filed objections to the court composition . These motions were made in a humiliating , even obnoxious manner . By doing so he was exerting pressure on the court , to force it to give a judgment that was convenient to him , or , alternatively , to set the court hearing at naught .

I was appalled by that , but what was my surprise when I learned about the pressure also being exerted on judge GPE by the court President !

We , the assessors , were there when , during the interval , judge GPE received a phone call from the court President to come and see her . After some time judge GPE came back , she was upset and depressed . To our question she replied that the court President PERSON had accused her that the court was reluctant to examine the case ; that the lay assessors were asking the victims the wrong questions ; and that she had suggested that judge GPE arrange for the lay assessors not to appear at the court proceedings .

... On TIME ... both PERSON and I decided to withdraw from the proceedings .

At the start of the hearing on DATE the public prosecutor , before he was called by the court , began with a motion in which he , in essence , again degraded and insulted me by repeating [ a ] comment made by [ the victim ] outside the courtroom about me ... he did not react to the reproof by the judge .

After that ... I declared that I withdrew from sitting in the proceedings on the grounds of the public prosecutor ’s rude and offensive behaviour , which could not be defined as anything but pressure on the court . PERSON then withdrew as well .

Before the trial I had never met anybody [ involved in the proceedings ] : not the judge , not GPE , not the public prosecutor , not the defence counsel ; I had no personal interest in the case . The public prosecutor ’s behaviour was therefore inexplicable and came as a shock to me .

At TIME judge PERSON was called out from the deliberations room where the court was taking a decision . It was the court President who called her ...

On DATE ... judge PERSON told us that the court President had shouted at her , demanding that she refrain from enclosing [ the assessors’ ] withdrawal requests in the file and not refer in the court ’s decision to the reason for the withdrawal .

PERSON and I were shocked by what was going on . First it was the public prosecutor who put pressure on us at the hearing , and then it turned out that the [ court President ] joined in .

What a surprise it was when the [ court ’s Deputy President ] came into the deliberations room and started trying to persuade me and PERSON not to comment on the public prosecutor ’s behaviour in the court decision , but to state in our requests and in the court decision that we withdrew on medical grounds . She said that they would invite me and PERSON to take part in other proceedings .

PERSON and I refused to change our requests , and after the Deputy President left the court issued the decision [ to allow withdrawal ] which reflected what had happened .

I have been a lay assessor before , I have taken part in several other proceedings , but this was the first time that I came across such pressure being exerted on the court .

I request you to look into the above events and to take action against the [ court ’s President and her Deputy ] . ”

On DATE the other lay assessor who had withdrawn , PERSON , sent a similar letter to ORG .

Similar allegations were made by PERSON , a court secretary , in a letter to the President of ORG of GPE . She related her participation in GPE ’s case and volunteered to testify that the applicant had indeed been frequently called up by the court president and had been distressed because of the intrusion in the court proceedings . She also complained about the unacceptable behaviour of the public prosecutor , who had forced , in her opinion , the lay assessors to withdraw .

Following the applicant ’s complaint of DATE , the High Judiciary Qualification Panel appointed PERSON , a judge of ORG , to examine the allegations against PERSON .

The Government submitted a copy of a report prepared by PERSON and submitted to ORG , which contained the following conclusions :

– during the hearing of the criminal case against PERSON the applicant herself consulted PERSON , seeking advice on the conduct of the proceedings in view of the public prosecutor ’s behaviour ;

– further communications between the applicant and PERSON and , on another occasion , the deputy court president , took place in private and their content could not be established ;

– there was insufficient evidence that PERSON exerted pressure on the applicant , since both PERSON and the deputy court president denied the allegations ;

– Ms Yegorova transferred the criminal case file against GPE to another judge on the grounds that PERSON “ was unable to conduct the court hearing , her procedural acts were inconsistent , [ she acted ] in breach of the principle of adversarial proceedings and equality of arms , she stated her legal opinion on the pending criminal case and she attempted to seek the court president ’s advice on the case , and in view of the existence of confidential reports by relevant agencies to ORG President with regard to judge GPE , in connection with the examination of GPE ’s case and other criminal cases ” .

On CARDINAL DATE the High Judiciary Qualification Panel reported to the President of ORG their findings concerning the complaint against PERSON . He decided , without elaborating on the reasons , that there were no grounds for charging PERSON with a disciplinary offence .

On DATE the High Judiciary Qualification Panel decided to dispense with disciplinary proceedings against PERSON . No copy of this decision was provided to ORG . On DATE the applicant was informed by letter that her complaint against the court president had been examined and that no further action was considered necessary .

In the meantime , on an unidentified date prior to the applicant ’s above reinstatement in the judicial function , the President of ORG sought termination of the applicant ’s office as judge . He applied to ORG , alleging that during her election campaign the applicant had behaved in a manner inconsistent with the authority and standing of a judge . He claimed that in her interviews she had intentionally insulted the court system and individual judges and had made false statements that could mislead the public and undermine the authority of the judiciary . The applicant filed her objections .

The hearing before ORG was scheduled for DATE , but was then adjourned until DATE , at the applicant ’s request , on health grounds . It was subsequently adjourned for the applicant ’s failure to appear until DATE , then until DATE , CARDINAL DATE and , finally , CARDINAL DATE .

On DATE ORG examined ORG request . The applicant was absent from the proceedings , apparently without any valid excuse . ORG of GPE decided that the applicant had committed a disciplinary offence and that her office as a judge was to be terminated in accordance with the PERSON “ On the Status of Judges in the NORP Federation ” . The decision , in so far as relevant , read as follows :

“ During her election campaign , in order to win fame and popularity with the voters , judge PERSON deliberately disseminated deceptive , concocted and insulting perceptions of the judges and judicial system of GPE , degrading the authority of the judiciary and undermining the prestige of the judicial profession , in violation of the Law On the Status of Judges in GPE and LAW of a Judge in GPE .

Thus , in DATE , when meeting with [ members of her ] constituency , judge PERSON stated that ORG exerts unprecedented pressure on judges during examination of a number of criminal cases by ORG .

In the live broadcast of her interview with the radio station ORG on DATE , judge PERSON stated that DATE of working in ORG have led me to doubt the existence of independent courts in Moscow’ ; ‘ a judge , although defined by law as an embodiment of judicial power and independent in this capacity , in fact often finds himself in a position of an ordinary clerk , a subordinate of a court president’ ; ‘ the courts of law are used as an instrument of commercial , political or personal manipulation’ ; ‘ if all judges keep quiet this country may soon end up in a [ state of ] judicial lawlessness.’

In the interview with the newspaper ORG DATE , judge PERSON stated : ‘ looking around , one is just stunned by the lawlessness . The law applies quite strictly to ordinary people , but this is not the case when it comes to persons holding important posts . But they break the law too – although they are not subject to ORG ; ‘ the court administration tests each judge to see how flexible he is , so that when it comes to [ the allocation of cases ] they know who can be entrusted with a delicate case and whom to PERSON .

In another interview with judge PERSON , published in ORG on DATE , she also stated that ‘ in LOC , by the way , the courts are much purer than in GPE . There you can not imagine such brutal manipulation and would not be talking about corruption to such an ORG ; ‘ I doubt that any provincial courts would harbour scandals as outrageous as those in ORG , but this a question of degree , while the problems are more general’ ; ‘ a judge , although defined by law as an embodiment of judicial power and independent in this capacity , in fact often finds himself in a position of an ordinary clerk , a subordinate of a court president . The mechanism of how a decision is imposed on a judge is not to contact [ the judge ] directly , instead a prosecutor or an interested person calls the court president , who then tries to talk the judge into a ‘ right’ decision , first gently , by offering advice or a professional opinion , then pushing him or her more strongly to take the ‘ correct’ decision , that is , one that is convenient to ORG ; ‘ in reality a court still more often than not takes the position of the prosecution . The courts then become an instrument of commercial , political or personal manipulation . No one can rest assured that his case DATE whether civil or criminal or administrative – will be resolved in accordance with the law , and not just to please PERSON .

In so doing judge PERSON knowingly and intentionally disseminated in civil society false and untruthful fabrications about the arbitrariness allegedly prevailing in the judicial sphere ; that , in dealing with specific cases , judges find themselves under constant and undisguised pressure exercised through the court presidents ; that the court presidents pre - test to what extent CARDINAL or other judge may be controlled in order to determine who could be entrusted with delivering a knowingly unjust judgment in a case ; that no one can be sure that his case is examined by an impartial tribunal ; that judges in fact betray the interests of justice by adopting the position of the prosecution in most cases ; that a judge in this country is not independent and honest , but [ is ] a typical subordinate public servant ; that in this country we have complete lawlessness , and judicial chaos .

The above - mentioned statements by judge PERSON are clearly based on fantasies , on knowingly false and distorted facts .

However , dissemination by a judge of such information poses a great public danger because it signifies deliberate slandering of the authority of the judiciary and intentional undermining of the prestige of the judicial profession , and also promotes incorrect ideas about corrupted , dependent and biased judicial authorities in this country , which leads to the loss of public trust in the fairness and impartiality of examination of cases brought before the courts of law .

As a result , the false information imparted to civil society by judge GPE , a member of the judiciary of GPE , undermined public confidence that the judiciary in GPE are independent and impartial ; consequently , many citizens were lead to believe , erroneously , that all judges in this country are unprincipled , biased and venal , that in exercising their functions they only pursue their own mercenary ends or other selfish goals and interests .

In support of her unsubstantiated and groundless attempts to defile the judicial system of our country , judge PERSON referred [ in her interviews ] to the criminal case against PERSON , in which she had earlier acted as judge .

She referred to the same case in her complaint to ORG of GPE .

According to the note of the President of the High Judiciary Qualification Panel ( ref . no . BKK-CARDINAL/CARDINAL of CARDINAL DATE ) , ORG of GPE carried out an enquiry to verify the allegations made by judge PERSON in her complaint ; the President of ORG of GPE concluded , on the basis of the above , that there were no grounds to grant her request .

Thus , the allegations of interference with judge PERSON ’s exercise of judicial function have not been confirmed by the conclusions of the enquiry .

ORG notes that judge PERSON did not make these allegations during the period when she was examining the case against GPE , but DATE , during and immediately after the election campaign . Therefore the Panel considers that the dissemination by judge GPE of false and untrue information is based only on her subjective conjectures and personal insinuations .

Besides , in making her statements in the media judge GPE disclosed specific factual information concerning the criminal proceedings in the case against GPE , before the judgment in this case had entered into legal force .

[ The PERSON on the Status of Judges in GPE and LAW of a Judge in GPE ] obliged her to refrain from any public statements discrediting the judiciary and the justice [ system ] in general .

In sum , ORG of GPE finds the actions of judge GPE to have degraded the honour and dignity of a judge , discredited the authority of the judiciary [ and ] caused substantial damage to the prestige of the judicial profession , thus constituting a disciplinary offence .

In choosing the disciplinary sanction to be imposed on judge PERSON the qualification board takes into account that in making her statements [ she ] dishonoured the judges and the judicial system of GPE ; she disseminated false information about her colleagues ; she traded the dignity , responsibility and integrity of a judge for a political career ; demonstrated bias when hearing a case ; preferred her own political and other interests to the values of justice ; abused her status as a judge in propagating legal nihilism and causing irreparable damage to the foundations of judicial authority . ... ”

NORP The decision indicated that it could be challenged before a court within DATE of being served .

The applicant applied to ORG , contesting the decision of ORG .

On DATE the applicant filed a request with the President of ORG to transfer her case from ORG to another court , on the grounds that the former would lack impartiality .

On DATE ORG , composed of a single judge , began to examine the case . The applicant first challenged the judge on the grounds that he was a member of ORG and was thus directly associated with the other party to the proceedings . She further claimed that ORG , in any composition , would lack independence and impartiality because the impugned statements were specifically concerned with that court and its President . This request was examined on DATE and was refused , on the grounds that it was not possible to transfer the case to another judge within the same court and that only a higher court was entitled to transfer the case to another court . The applicant lodged a request seeking to have the case adjourned pending ORG decision on her request for transfer of the case ; this was also refused .

On DATE ORG upheld the decision of ORG . It found that the applicant ’s statements in the media were false , unsubstantiated and damaging to the reputation of the judiciary and the authority of all law courts . It also established that the applicant had publicly expressed an opinion prejudicial to the outcome of a pending criminal case . It concluded that the applicant had abused the right to freedom of expression out of political ambition , that she had publicly denied the rule of law and that such conduct was incompatible with holding judicial office . The court dismissed the applicant ’s argument that the decision was taken in her absence , having found that after many adjournments she had failed to present the court with any document certifying the reasons for her absence . It also dismissed her objection that at the time of the election campaign her duties as a judge were suspended and held that , during the suspension , she was still bound by the rules of conduct applicable to judges . Concerning the applicability of LAW of a Judge in GPE , the court decided that it was in force and legally binding at the material time and could be applied in this case .

NORP The applicant filed an appeal with ORG .

On DATE the applicant received a letter from judge NORP of ORG , informing her that transfer of the case from ORG was refused on the grounds that it would be contrary to the rules of jurisdiction .

On DATE ORG of GPE , ruling at final instance , upheld the judgment of DATE , having reiterated the earlier findings by ORG and ORG . On the question of the alleged lack of impartiality by ORG , which considered the case at first instance , it found that the applicant had not made any relevant complaints in the proceedings before ORG and was therefore barred from raising this objection on appeal .

Law No . ORG of DATE “ On ORG in the NORP Federation ” provides :

“ CARDINAL . A judge must strictly observe the LAW of GPE and other laws .

NORP In exercising his or her powers , and also in his or her conduct outside the office , a judge must refrain from anything that would derogate from the authority of the judicial power or the dignity of a judge or cast doubts on his or her objectivity , fairness and impartiality . ”

“ A judge who has committed a disciplinary offence ( a breach of this PERSON and of LAW to be adopted by ORG ) may , with the exception of the judges of ORG of GPE , receive a disciplinary penalty in the form of :

– a warning ; [ or ]

– early termination of judicial office .

The decision to impose a disciplinary penalty must be taken by the judicial qualification board that has competence to examine the question of termination of office of a particular judge at the time of that decision .

The Code of Honour of a Judge in GPE , as adopted by ORG of GPE on DATE and approved by the Second All - Russian ORG in DATE , provides :

“ A judge must refrain from anything that would derogate from the authority of judicial power . He or she shall not cause damage to the prestige of his or her profession in order to pursue personal ends or the interests of another person . ”

“ ... A judge must not make any public statements , comments or press publications concerning cases under examination by a court before a final judicial decision enters into force . A judge must not publicly , outside the professional framework , challenge court judgments that have entered into legal force or the acts of his or her colleagues . ”

“ A judge may participate in public life so long as this does not cause damage to the authority of the court and proper discharge by the judge of his or her professional duties . ”

Section CARDINAL of the Law “ On ORG in the NORP Federation ” provides as follows :

“ CARDINAL . Judicial office may be terminated on the following grounds :

( CARDINAL ) pursuing activities incompatible with holding judicial office ; ”

The Code of Civil Procedure of GPE provides as follows :

“ CARDINAL . ORG of the Russian Federation examines as a court of first instance civil cases concerning :

( CARDINAL ) contestation of decisions to terminate or to suspend the status of a judge or the status of a retired judge ; ... ”

Section CARDINAL of LAW of DATE “ On ORG ” provided that disputes concerning the termination of the status of a judge fell within the jurisdiction of the courts of the subjects of GPE .

On DATE ORG held in its decision No . CARDINALO :

“ Jurisdiction in cases concerning contestation of decisions by judicial qualification panels of the subjects of GPE on the termination or suspension of the status of a judge or the status of a retired judge must be determined in accordance with paragraph CARDINAL(CARDINAL ) of LAW , which provides that only ORG of GPE may examine , as a court of first instance , civil cases concerning the contestation of decisions to terminate or to suspend the status of a judge or the status of a retired judge . ”

The Code of Criminal Procedure of the Russian Federation provides :

“ CARDINAL . The case must be examined by CARDINAL and the same judge or by a court bench in one and the same composition .

If CARDINAL of the judges is no longer able to take part in the hearing he or she must be replaced by another judge , and the court hearing must restart from the beginning . ”

Law No . ORG of DATE “ On the Status of Judges ” provides :

“ CARDINAL . The ORG President , at the same time as exercising judicial powers in the respective court and the procedural powers conferred on court presidents by LAW , carries out the following functions :

( CARDINAL ) organises the court ’s work ;

( CARDINAL ) NORP distributes duties between the President ’s deputies and , in accordance with the procedure provided for by ORG , between the judges ; ... ”

The instruction on the ORG internal document management in force at the material time provided that the court President was responsible for the court ’s clerical and office management .

As a matter of common practice , a court President distributes cases lodged with a court between the judges of that court .


Preliminary objections joined to merits and dismissed (ratione personae);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient

Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in GPE .

In DATE the applicant became suspected of debtor ’s fraud for allegedly not having provided correct information about his assets and possessions , including real estate , shares in CARDINAL housing companies and cars , in debt recovery procedures on DATE or DATE and DATE as well as in his bankruptcy proceedings on CARDINAL DATE or DATE . His creditors , ORG of ORG , a bank , were complainants in that pre - trial investigation , which was carried out by the NORP police . The applicant was in detention from CARDINAL DATE .

NORP In their observations of DATE the Government submitted that the pre - trial investigation had been terminated in DATE and that the matter was pending before the public prosecutor for the consideration of the charges . It is not known whether charges have been preferred against the applicant .

While the pre - trial investigation was pending the indebted applicant was , in another enforcement inquiry ( ulosottoselvitys , utsökningsutredning ) on DATE , ordered to provide information about his assets in order to enable the ORG to seize those assets to secure payment of the applicant ’s debts . The enforcement inquiry is a formal procedure in which the debtor must , under threat of certain sanctions , give an overall account of his assets and other financial means for the purposes of enforcement . In order for the Bailiff to be able to decide whether there are assets which can be used to satisfy the creditor , the debtor must also provide information on assets handed over to others and about transactions carried out by him . An enforcement inquiry is resorted to if it has not been possible otherwise to establish the debtor ’s financial situation in a reliable manner .

On DATE at the GPE enforcement office the applicant however refused , arguing that the enforcement inquiry concerned the same facts as were in issue in the pending pre - trial investigation into alleged debtor ’s frauds . He claimed that it would be contradictory if he were ordered to reveal information in the enforcement inquiry as he had a privilege to remain silent as regards these matters in the pre - trial investigation .

On DATE the Bailiff issued a decision ordering the applicant to provide this information on DATE on pain of an administrative fine ( uhkasakko , vite ) in the amount of MONEY ( ORG ; MONEY ( ORG ) ) . According to the decision , the enforcement inquiry was necessary because the applicant had debts amounting to ORG CARDINAL subject to debt recovery . The applicant had to provide information about his assets and debts and about property disposed of and related transactions so that it could be ascertained whether or not assets were recoverable for the purposes of enforcement . The requested information was considered decisive in the search for the applicant ’s assets .

On DATE the applicant failed to arrive at the enforcement inquiry at the ORG ’s office . Instead he submitted a letter , informing the Bailiff that he was not going to provide the information requested . He referred to LAW and his rights to remain silent and not to incriminate himself . The pending pre - trial investigation concerned , inter alia , CARDINAL earlier enforcement inquiries and also the current enforcement inquiry concerned these matters . It would be inconsistent if he had to give information in the enforcement inquiry when he had the right to remain silent about the same matters in the pre - trial investigation .

On DATE the ORG requested ORG ( käräjäoikeus , tingsrätten ) to order the applicant to pay the administrative fine . The applicant objected , maintaining that he had a right under the LAW to remain silent . As the Bailiff aimed to find out the applicant ’s existing assets , the matter concerned precisely the same matter as was under investigation in the criminal case if he were now to own something that he had owned already at the time of the earlier enforcement inquiries and the bankruptcy procedure and which he had not accounted for . Also , the fact that the Bailiff aimed to find assets which could be returned meant that the applicant would be required to give information about all assets previously owned by him and assets that had possibly replaced his previous assets , that is , facts which were at issue in the criminal investigation . Lastly , the ORG wished to find out the origin of assets already seized from the applicant which , too , was a fact to be examined in the criminal investigation .

On DATE ORG ordered payment of the fine albeit reducing its amount to FIM CARDINAL,CARDINAL ( about CARDINAL,CARDINAL.CARDINAL ORG ) .

The court noted the applicant ’s arguments under the Convention in which he relied , inter alia , upon the cases of PERSON v. the GPE ( judgment of DATE , Reports of Judgments and Decisions CARDINALVI ) , PERSON v. GPE ( judgment of DATE , Series A no . CARDINALA ) , and PERSON v. the GPE ( judgment of DATE , Reports CARDINAL ) , to the effect that the enforcement inquiry breached his right to a fair trial as he had been put under threat of a fine to compel him to incriminate himself by providing information about his assets , although a criminal investigation into alleged debtor ’s fraud concerning the same assets was pending .

The court referred to the counter arguments presented by the Bailiff that the purpose of the enforcement inquiry was to obtain information on the applicant ’s assets in order to fulfil his obligations as a debtor , and concluded that in the present case the enforcement inquiry sought to protect the rights of the creditors . The court concluded that if facts indicating the guilt of the applicant in the pending criminal investigation were to be revealed during the enforcement inquiry , the authorities would be bound by professional secrecy .

The applicant requested ORG ( hovioikeus , hovrätten ) to issue interim measures , which were refused on DATE . He also filed an appeal .

On DATE ORG rejected his appeal . At the outset , it noted that in DATE the applicant and his debtors had reached a friendly settlement and that [ on DATE ] having paid MONEY to the Bailiff the applicant had been exempted from the remainder of his debts subject to debt recovery . However , as the friendly settlement had been reached only after ORG had ordered payment of the administrative fine , the friendly settlement lacked relevance to the present case .

It referred to the cases of ORG and Others . v. GPE ( nos . CARDINAL , CARDINAL and ORG , ORG CARDINALIX ) and PERSON v. GPE ( judgment of DATE , Series A no . CARDINALB ) and found that :

“ ... the application of the right not to incriminate oneself [ as provided for in the Convention ] to the debt recovery procedure might hinder effective enforcement without cause . Given this and the above mentioned judgments of the ORG , the Court of Appeal finds that the rights of a person charged guaranteed by LAW do not , as a starting point , apply to the debt recovery procedure , and the right of the person “ charged ” not to incriminate himself can not be held as a valid reason not to be present in the enforcement inquiry or to refuse to answer the questions put to him in the inquiry . Furthermore , ORG considers that nor can the Bailiff ’s right under LAW , section FAC ) , of LAW ( ulosottolaki , utsökningslagen ) to give , under certain conditions , necessary information to other authorities as such be considered a valid reason for the refusal .

Therefore , ORG finds that [ the applicant ] has not presented a valid reason , within the meaning of LAW , section DATE , of LAW , not to fulfil his obligation , laid down by the same LAW , section DATE , to give information in the enforcement inquiry .... ”

The applicant sought leave to appeal . On DATE ORG ( korkein oikeus , högsta domstolen ) granted such leave . On DATE it ordered interim measures .

On DATE ORG issued its decision on the merits ( precedent no . PERSON ) , rejecting the appeal by CARDINAL votes to CARDINAL . Even though the applicant alleged the contrary , ORG was not convinced that the purpose of the impugned enforcement inquiry in the present case was other than that provided for in LAW .

At the outset , it noted the contents of the relevant domestic law provisions ( sections CARDINAL , DATE , PERSON ) and ORG ) of LAW ; see paragraph CARDINAL below ) . It also had regard to LAW of LAW and case - law concerning LAW . The right of the accused not to be compelled to incriminate himself or to confess did not however mean that the accused would also have a right not to comply with an invitation to be present in interrogations or court hearings . The court noted that the applicant had the right not to contribute to the investigation of his possible guilt in the pending pre - trial investigation in which he was suspected of having committed debtor ’s frauds in connection with earlier debt recovery and bankruptcy procedures . It went on :

“ Effective enforcement of decisions is part of a fair trial . In connection with the enforcement of financial claims , the debtor ’s obligation to contribute to the establishment of facts of relevance to the enforcement is of great importance . The concealing of property , the reporting of liabilities that are false [ or based on a sham transaction ] , and the giving of other false or misleading information are established as criminal offences in LAW , ORG DATE , of LAW . The purpose of the powers of enforcement authorities to oblige the debtor to provide an account of his property , and of the coercive means available to ensure compliance with this obligation , is to make enforcement more efficient . Although it is possible to impose a threat of a fine to secure compliance with the obligation to give the information requested in connection with the enforcement inquiry , and a sentence may be ordered on a person concealing information or giving false information , the debtor is not , when complying with his or her obligation to give information on his or her property for the purposes of enforcement , a person charged with a criminal offence within the meaning of LAW , to whom the rights of the accused would apply .

The right of an accused to remain silent may exceptionally also have relevance in connection with an enforcement inquiry . It has relevance at least where it is apparent that the enforcement inquiry is carried out , contrary to the purpose of LAW , for the purposes of obtaining evidence in support of a suspicion of a prior criminal offence . Even in such a case , however , the obligation of the debtor to contribute to the enforcement inquiry results in that he must be present in the enforcement inquiry and give in that connection such information required by law as has no relevance with regard to the suspicion regarding crime .

[ The applicant ] has argued that the sole purpose of the enforcement inquiry was to find evidence for the pending criminal investigation . In any event , when the pre - trial investigation and the criminal investigation concerned the same matters , or at least essentially the same matters , and the complainants in the suspected crime were the debtors in the debt recovery procedure , the information provided in the enforcement inquiry would be used as evidence in the criminal case .

[ The applicant ] had a considerable amount of debts subject to debt recovery . According to the Bailiff , the purpose of the enforcement inquiry was to establish whether [ the applicant ] had such assets as could be used for the payment of debts , and not to obtain information for the purposes of the pending criminal investigation . It can not be concluded on the basis of the facts stated by [ the applicant ] alone that the enforcement inquiry would have been requested for a purpose other than within the meaning of LAW . As [ the applicant ] has refused completely to contribute to the enforcement inquiry , it is not possible to assess whether he would have had the right , on account of the said suspicion of a criminal offence , to refuse to provide some of the information . Nor is it possible to decide in this case to what extent the facts established in connection with the enforcement inquiry can be used as evidence in eventual court proceedings concerning a prior criminal offence .

[ The applicant ] has refused completely to contribute to the enforcement inquiry and has failed to be present . In doing so , he has not complied with his obligation imposed under the threat of a fine . He has not shown the existence of a valid reason for his refusal . He may thus be ordered to pay a fine . No reasons have emerged to reduce the fine imposed by ORG . ”

Dissenting from the majority , ORG was of the opinion that the applicant , whom he considered a person “ charged ” , had a valid reason not to fulfil the debt recovery obligations in the light of LAW and LAW . He stressed that although the Bailiff was bound by professional secrecy in the proceedings , the creditors who also had standing as complainants in the criminal proceedings would become aware of the content of the enforcement inquiry . The pre - trial investigation and the enforcement inquiry concerned the same facts , that is , they aimed to find out the applicant ’s economic situation and the origin of his assets . It was likely that information received in the enforcement inquiry would be used as evidence as regards the applicant ’s guilt in the criminal proceedings . Section CARDINAL ) of ORG Act ( laki viranomaisten toiminnan julkisuudesta , lagen om offentlighet i myndigheternas verksamhet ; Act no . CARDINAL ) did not , to his mind , prohibit the complainants from using this information in the pending criminal proceedings . ORG concluded that the applicant ’s right not to incriminate himself was violated .

Meanwhile , on DATE in another enforcement inquiry , the Bailiff ordered the applicant to provide information about his assets . The applicant refused , repeating his stance taken in the pending court proceedings , whereupon the Bailiff issued a decision ordering the applicant to provide this information on pain of an administrative fine . On DATE the Bailiff requested the Helsinki ORG to order the applicant to pay the administrative fine . On DATE the applicant was again required to be present at an enforcement inquiry .

It appears that the Bailiff subsequently waived these measures .

Section CARDINAL of the LAW ( Suomen perustuslaki , ORG grundlag ; Act no . CARDINAL/CARDINAL ) provides :

“ Protection under the law - Everyone has the right to have his or her case dealt with appropriately and without undue delay by a legally competent court of law or other authority , as well as to have a decision pertaining to his or her rights or obligations reviewed by a court of law or other independent organ for the administration of justice . Provisions concerning the publicity of proceedings , the right to be heard , the right to receive a reasoned decision and the right of appeal , as well as the other guarantees of a fair trial and good governance shall be laid down by an LAW . ”

There are no explicit provisions of law concerning the right to silence and the right not to incriminate oneself . It has been left to the authorities applying the law to respect those rights . The Government PERSON for the enactment of the act amending LAW ( HE CARDINAL vp ) noted that the right to legal protection also included the right of the accused not to testify against himself under LAW and the Convention .

At the material time , the provisions on enforcement inquiry were included in LAW :

For the purpose of obtaining the necessary information for enforcement , the Bailiff may carry out an enforcement inquiry . In the enforcement inquiry , the debtor must provide information on his assets , debts and income , as well as his or her address and the name of his or her employer . He must also give information about the whereabouts of an object or a document regarding which he by a judgment has been ordered to give to another person or which by law has to be given to the enforcement authority .

In the enforcement inquiry , the debtor must provide such information as is necessary to establish whether property disposed of and related transactions can be recovered for the purposes of enforcement .

Where requested by the Bailiff the debtor shall in the enforcement inquiry prepare a list of assets , debts and income , or verify and confirm by signature such a list prepared by the Bailiff on the basis of information given by the debtor .

The debtor must , where invited by the Bailiff , appear in person in the office of the Bailiff of his or her place of residence or stay for the purpose of an enforcement inquiry . Where the debtor fails to appear and there is probable reason to believe that he or she intends to evade enforcement , the police shall on the Bailiff ’s written request bring him or her to the enforcement inquiry .

If the debtor is under an obligation to keep accounts , he or she must produce the accounts and related materials to be audited on the Bailiff ’s request for the purpose of obtaining the necessary information for enforcement .

Before the enforcement inquiry , the debtor or his or her representative referred to in section CARDINAL(b ) must be informed of sanctions that may be imposed on him or her in the case of a failure to provide information or provision of incorrect information . ...

If the debtor or his or her representative referred to in section CARDINAL(b ) fails to comply with his or her obligations under sections CARDINAL or CARDINAL(a ) , the ORG may order the debtor to fulfil the obligations within a specified time - limit under threat of an administrative fine . The administrative fine is imposed and ordered to be paid in accordance with sections CARDINAL to CARDINAL . ...

For the purpose of enforcement and in order to receive necessary information in an individual debt recovery case a third person must notwithstanding the provisions on secrecy on request by the Bailiff provide information on :

NORP whether or not he has in his possession or otherwise in his control assets belonging to the debtor and the nature of the assets ;

NORP whether the debtor has an outstanding account from him , the basis for it and its amount ;

NORP whether he and the debtor have entered into an agreement or arrangement which may be of relevance in the search for recoverable assets of the debtor and the closer content of the agreement or arrangement ; and

NORP data concerning the debtor ’s employment and salary as well as address and telephone number which he has in his capacity of the debtor ’s employer .

Any legal provision in another act about the Bailiff ’s right to receive information notwithstanding the secrecy obligation must be complied with .

The Bailiff has the right to receive the information mentioned in subsections CARDINAL and CARDINAL free of charge . This does not concern information provided by means of automatic data processing .

If the third party refuses to give information requested and mentioned in subsections CARDINAL and CARDINAL , the ORG may order him to produce it within a given time on pain of an administrative fine . The fine is issued and payment of it is ordered in accordance with sections CARDINAL - CARDINAL .

For the purpose of enforcement and in order to receive necessary information in an individual debt recovery case an authority , a corporation having a public function and a company attending to telecommunications or postal activity must notwithstanding the provisions on secrecy and in addition to the information mentioned in section CARDINAL(e ) on request by the Bailiff provide information on :

NORP the debtor ’s income and property ;

NORP the debtor ’s employment or service relationships and pensions ;

NORP the debtor ’s address and telephone number as well as other contact information ;

In the acquisition of the information mentioned in subsections CARDINAL and CARDINAL , it must be seen to that sensitive personal information not relating to the handling of the debt recovery case is not delivered to the Bailiff .

Notwithstanding the secrecy obligation provided for in ORG , the Bailiff may disclose necessary information to another enforcement authority and , if there is reason to believe that a debtor may have committed an offence , to the prosecuting and investigative authorities . The Bailiff may also give information to the prosecuting authority for the purpose of consideration of conversion imprisonment for non - payment of fines . In addition , the Bailiff may give necessary information about the debtor ’s observed malpractice to the tax authority , labour authority , bankruptcy ombudsman or other authority . However , information on misconduct by a debtor received from a person who , in court proceedings , would have the right or obligation to refuse to testify on the facts in question , as well as information received from a third person concerning his or her own misconduct may not be disclosed by the Bailiff .

... Payment of the administrative fine is ordered if the obligations have not been fulfilled or have been contravened without a valid reason . ...

Prior to issuing an administrative fine , the Bailiff must afford the debtor an opportunity to be heard in a proper manner , unless the enforcement is thereby substantially impeded . ... ”

Chapter CARDINAL , section CARDINAL ( Act no . CARDINAL , in force at the relevant time ) , of LAW ( rikoslaki , strafflagen ) provided that a conversion sentence be passed for an unpaid threat of a fine if the collection of it had failed .

Section CARDINAL ) of ORG reads :

“ [ ... ] A party , his / her representative or counsel must not disclose to third parties secret information obtained by virtue of party status and concerning other persons than the party himself .

A person referred to above in paragraph ( CARDINAL ) or ( CARDINAL ) must not use secret information for personal benefit or the benefit of another , nor to the detriment of another . However , a party , his / her representative and counsel may use information concerning a person other than the party himself / herself , where the matter concerns the right , interest or obligation on which the access of the party to the information is based . ”

According to the Government PERSON for the enactment of ORG ( HE CARDINAL vp , p. CARDINAL ) there is an exception to the prohibition for a party to use secret information obtained in the framework of proceedings to which he is a party . That is the case when the party is attending to a matter concerning his right , benefit or obligation and on which his right to receive information has been based . This means that such information can be used in an appeal procedure concerning the same matter or in proceedings instituted before another authority if the matter concerns attending to the same right , obligation or benefit . Thus , a creditor applying for enforcement , for example , could use information obtained as a party to the enforcement procedure in recovery of assets or bankruptcy procedures relating to the same claims . In this connection , the PERSON is silent on whether a creditor applying for enforcement may use such information in criminal proceedings relating to the same claims .

Section CARDINAL of the LAW states that a breach of the secrecy obligation and the prohibition of misuse of information based on section CARDINAL is punishable .

Concealment of property and provision of incorrect information in an enforcement inquiry are punishable offences under LAW no . CARDINAL/CARDINAL ) .

Chapter CARDINAL of LAW was amended by Act no . CARDINAL/CARDINAL with effect from DATE . The ORG is proscribed from transmitting to other authorities incriminating information under LAW , section CARDINAL :

“ The Bailiff must not disclose information which has to an essential extent been received from :

CARDINAL ) a person who as a witness in the proceedings has an obligation or a right to refuse to testify on the fact in question , unless this person gives his consent to the disclosure of the information ;

CARDINAL ) NORP the debtor , when asked about a fact referred to in paragraphs CARDINAL to CARDINAL of section DATE , if the answer indicates that the debtor may have committed an offence in a context other than the enforcement procedure , and the disclosure of the information entails a risk of charges on the debtor ; or

CARDINAL ) a third person , if the information concerns misconduct by this third person .

The right of the Bailiff to disclose information to a creditor is provided for in LAW , section CARDINAL . The foregoing provisions apply irrespective of whether the information would otherwise be confidential . ”

The right of the Bailiff to transmit information to the creditor applying for enforcement is regulated by LAW , section CARDINAL :

“ The Bailiff must without delay inform the creditor applying for enforcement , if they are evidently relevant having regard to the size of the claim , of circumstances perceived by him which may give rise to the need to institute recovery proceedings , to apply for bankruptcy or to another similar special measure in order to collect the claim . The creditor must also receive TIME from a possible enforcement inquiry and other necessary documents . The Bailiff may also provide information mentioned in section PERSON ) , point CARDINAL and CARDINAL . The creditor applying for enforcement must not use this information in order to circumvent the provisions on testimony in LAW or in order to have the debtor charged with a criminal offence . The Bailiff must remind the creditor of the said restrictions . ”

In its report ORG ( PERSON CARDINAL/CARDINAL ) emphasised the importance of respecting the right not to incriminate oneself but also underlined that such protection should not be extended to the detriment of effective enforcement to situations where there was no risk of a breach of that principle .

LAW was with effect from DATE replaced by LAW ( ulosottokaari , utsökningsbalken ; Act no . DATE ) . The contents of the relevant provisions essentially remain the same .

The Government relied on a ORG judgment of DATE ( precedent no . ORG CARDINAL ) : A partner of a limited partnership company committed aggravated debtor ’s dishonesty . A. received part of the moneys involved . In his personal bankruptcy proceedings ORG concealed those assets which he had received through aiding and abetting in the said offence . ORG held that the obligation of debtors to provide information exclusively served the interests of the enforcement procedure and was necessary for the purposes of protecting the interests of creditors . The purpose was that the administrator of the bankruptcy estate and the creditors got , through the debtor ’s cooperation , as reliable a picture as possible of the estate ’s assets and debts . The provision of information was not as such related to any criminal case or to the search for evidence relating to a suspected offence , and nor was the debtor providing information in the capacity of a suspect of an offence . Accordingly , the debtor had no right to conceal assets of the bankruptcy estate in the bankruptcy proceedings on the ground that he believed that by declaring the assets , he would have revealed that he had committed an offence relating to the origin of the assets or some other offence . A. had not therefore had any right not to declare the said assets in the bankruptcy procedure and he was accordingly convicted of debtor ’s fraud .

The applicant considered the precedent irrelevant to his case , as A. had not been “ charged ” within the meaning of LAW when he had given an account of his assets .