Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed

Anatoly Kovler;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

On DATE the Government of GPE appointed the applicant Head of ORG with effect from DATE .

Meanwhile , on DATE the applicant ’s neighbour PERSON filed a criminal complaint against him with the police authorities in GPE . She alleged that on DATE the applicant had demolished a separating wall erected between their backyards by her husband and broken one of the windows of her house . In her statement of CARDINAL DATE , PERSON added that during the incident of DATE the applicant had also shouted that she and her family should come out so that he could kill them .

On DATE the ORG Attorney ’s ORG ( Općinsko državno odvjetništvo u GPE ) indicted the applicant before ORG ( PERSON ) accusing him of the criminal offences of uttering threats and damaging another ’s property , and invited the court to issue a penal order in accordance with section CARDINAL of LAW ( see paragraph CARDINAL below ) .

On DATE a single judge of ORG issued a penal order ( kazneni nalog ) against the applicant under section CARDINAL of LAW , finding him guilty as charged and imposing a prison sentence of DATE , suspended for DATE . The applicant was not informed of , and did not participate in , those proceedings . The order was served on the applicant on DATE .

On DATE the applicant lodged an objection ( prigovor ) against the penal order arguing that he had not committed the criminal offences for which he had been convicted , and that he had not been given an opportunity to defend himself and present evidence .

On DATE ORG set aside its penal order of DATE and dropped the charges against the applicant under section CARDINAL of LAW without any further explanation .

Meanwhile , by a decision of DATE the Government of GPE removed the applicant from his position as Head of ORG on the grounds that he had been found guilty of a criminal offence by the judgment of ORG of DATE . The decision reads as follows :

D E C I S I O N

“ PERSON is hereby relieved of his duties as Head of ORG .

R e a s o n s

Section CARDINAL(CARDINAL ) of ORG provides that the heads of the regional offices of the ORG administration are appointed and removed by the Government of GPE upon a proposal of the ORG secretary of ORG on the basis of a previously conducted public competition .

By a decision of the Government of GPE ... of CARDINAL DATE PERSON was appointed Head of ORG .

By judgment no . K CARDINAL/CARDINAL of ORG of DATE , PERSON was found guilty of a criminal offence against the rights and freedoms of man and the citizen defined in LAW and classified as uttering threats , in conjunction with a criminal offence against property defined in LAW and classified as damaging another ’s property . [ As a consequence , he ] received ... a prison sentence of DATE and DATE , suspended for DATE .

Having regard to foregoing , the ORG secretary of ORG considered that keeping PERSON as Head of ORG could harm the probity of the civil service .

In accordance with the above , the ORG secretary of ORG proposed that the Government of GPE relieve PERSON of his duties as Head of ORG . ORG accepted this proposal .

That being so , it was decided as indicated in the operative part . ”

The operative part of the decision was published in ORG no . CARDINAL of DATE .

On DATE the DATE newspaper ORG PERSON reporting from the ORG ’s meeting of DATE , reported on the applicant ’s removal from office . A small article entitled “ Removals and appointments [ NORP i imenovanja ] ” in its relevant part read as follows :

“ In GPE the Government relieved PERSON , the incumbent Head of ORG , of his duties . ... PERSON was relieved of his duties because of a non - final judgment imposing a ... prison sentence of DATE and DATE , suspended for DATE , for a criminal offence against a freedom of man . ”

On DATE the same daily published an article entitled “ Removed because of a non - existent ‘ judgment’ [ Smijenjen zbog nepostojeće presude ] ? ” , which described the circumstances surrounding the applicant ’s removal from office and gave him the opportunity to present his view .

On DATE the applicant brought an administrative action in ORG against the Government of GPE challenging the decision on his removal .

On DATE the Government of GPE submitted their reply to the applicant ’s action . That reply was not forwarded to the applicant . The relevant part of ORG reply read as follows :

“ ... The decision which is the subject of this administrative dispute does not disclose any breach of law raised by the plaintiff . The decision to relieve PERSON of his duties as Head of ORG was adopted in accordance with section PERSON ) of ORG . ...

It is undisputed that , by judgment no . K CARDINAL/CARDINAL of ORG of DATE , PERSON was found guilty of a criminal offence against the rights and freedoms of man and the citizen – uttering threats – defined in LAW , in conjunction with a criminal offence against property – damaging another ’s property – defined in LAW , and that he received ... a prison sentence of DATE and DATE , suspended for DATE .

The plaintiff argues that the present case concerns a penal order issued in accordance with section [ CARDINAL ] of LAW , to which he objected within the statutory time - limit , and that therefore there is no final judgment [ against him ] which could constitute an impediment to recruitment to the civil service set out in LAW .

However , the plaintiff ignores the fact that his removal from office was not owing to the existence of impediments to recruitment to the civil service set out in section CARDINAL of LAW . The discovery that , at the time of recruitment to the civil service or at the time of appointment to the position of Head of ORG , an impediment set out in section CARDINAL of LAW had existed , would have resulted in the termination of employment in the civil service by operation of law , pursuant to section CARDINAL ... of LAW . However , the present case does not concern such circumstances or the termination of employment in the civil service . Rather , [ it concerns ] the plaintiff ’s removal from his position as Head of ORG ... , where the impugned decision is not based on impediments to recruitment to the civil service but on circumstances concerning the plaintiff which were considered liable to ... harm the probity of ORG and the entire civil service . Criminal proceedings pending against a head of a ORG administration office may give a negative impression to the public and arouse suspicion as regards the diligent and lawful conduct of those employed in the ORG administration office run by such a person .

The plaintiff contests the right of the Government of GPE to remove a head of [ a ORG administration ] office at their own discretion ...

Contrary to the plaintiff ’s argument , we consider that the Government of GPE are entitled to remove a head of a ORG administration office at their own discretion because that is undoubtedly provided for by section CARDINAL of ORG . ...

Given that the contested decision was adopted in the procedure and in the manner prescribed by law , and that grounds ... for quashing or declaring [ it ] null and void do not exist , we propose that ORG dismiss the action as unfounded . ”

On DATE ORG dismissed the applicant ’s action finding that the contested decision of CARDINAL March CARDINAL had been based on section CARDINAL ) of ORG ( see paragraph CARDINAL below ) and section GPE ) of ORG ( see paragraph CARDINAL below ) . The relevant part of ORG judgment reads as follows :

“ ... the said laws indisputably show that the Government of GPE ... are entitled to remove a head of a ORG administration office ... at their own discretion ...

... in the reasoning for their decision , the defendant authority [ that is , the Government of GPE ] ... stated the circumstances which influenced that decision . In particular , having regard to the complaints submitted about the plaintiff ’s work , and the fact that criminal proceedings are pending against him before ORG ... for a criminal offence against the rights and freedoms of man and the citizen ( the criminal offence of uttering threats defined in LAW ) , in conjunction with a criminal offence against property ( the criminal offence of damaging another ’s property defined in LAW ) , the ORG secretary of ORG in its proposal ... of DATE considered that the plaintiff should be relieved of [ his ] duties as Head of ORG because keeping him in that position could harm the probity of the civil service . That proposal was accepted by the defendant authority which , at the session held on DATE , adopted a decision on his removal . Contrary to the plaintiff ’s arguments , by doing so [ the defendant authority ] did not examine ... whether his [ career in the ] civil service should be terminated pursuant to section CARDINAL of LAW , in which case it should be taken into account whether or not a civil servant had been convicted by a final judgment of a criminal offence against the rights and freedoms of man and the citizen . However , pending criminal proceedings for such a criminal offence , or even the adoption of a non - final judgment , may , given the position of the head of a ORG administration office , harm the probity of the office run by such a person and the entire civil service . Namely , the conduct of the plaintiff which led to the institution of those criminal proceedings , and its negative connotations in the public perspective , harms his personal reputation and may arouse suspicion among citizens as regards the diligent and lawful operation of the ORG administration office run by such a person . ”

On DATE the applicant lodged a constitutional complaint against ORG judgment alleging violations of , inter alia , his constitutional rights to a fair hearing , presumption of innocence , and respect for his dignity , reputation and honour . He argued that he had been removed from office on the basis of a non - final conviction secured in criminal proceedings of which he had not been aware and in which he had not had the opportunity to participate .

On DATE ORG ( Ustavni sud PERSON ) dismissed the applicant ’s complaint and served its decision on him on DATE . The relevant part of that decision reads as follows :

“ The complainant further alleges a violation of LAW which provides that everyone shall be [ presumed ] innocent and no one may consider him guilty of a criminal offence until his guilt has been established by a final court judgement .

The contested judgment was not delivered in proceedings in which the complainant ’s guilt was being determined , but [ in proceedings ] where the lawfulness of [ an ] administrative decision ... was examined .

The Constitutional Court therefore finds that the complainant ’s [ right ] provided for in LAW has not been breached by the contested judgment .

The complainant also alleges a violation of LAW , which guarantees to everyone respect for , and legal protection of , his personal and family life , dignity , reputation and honour .

The Constitutional Court finds that the complainant ’s [ right ] provided for in LAW had not been breached by the contested judgment because that judgment and the prior decision were rendered in lawfully conducted proceedings and are based on relevant legislation . ”

The relevant Articles of the LAW of GPE ( ORG , ORG nos . CARDINAL , CARDINAL , CARDINAL/CARDINAL ( consolidated text ) , CARDINAL , DATE ( consolidated text ) , CARDINAL and DATE ( consolidated text ) , PERSON ( corrigendum ) and CARDINAL ) read as follows :

“ Everyone shall be [ presumed ] innocent and no one may consider him guilty of a criminal offence until his guilt has been established by a final court judgement . ”

“ Everyone shall be guaranteed respect for , and legal protection of , his personal and family life , dignity , reputation and honour . ”

NORP The relevant part of LAW ( Official Gazette of GPE nos . CARDINAL/CARDINAL , PERSON ( corrigendum ) , CARDINAL , CARDINAL , CARDINAL , CARDINAL ( corrigendum ) , CARDINAL ( consolidated text ) and DATE ) , which was in force DATE and DATE , reads as follows :

A judgment dismissing the charges shall be adopted in the event that :

CARDINAL ) the court has no jurisdiction in the matter ;

CARDINAL ) the proceedings were conducted without having been requested by an authorised prosecutor ;

CARDINAL ) the prosecutor dropped the charges during the trial ;

CARDINAL ) the required request or consent for prosecution has not been provided , or the authorised person or ORG body has withdrawn the request or consent ;

CARDINAL ) the defendant has already been finally convicted or acquitted in respect of the offence in issue or the criminal proceedings against him or her have been terminated ... ;

CARDINAL ) the defendant is exempt from criminal prosecution owing to amnesty or pardon , or if criminal prosecution has become barred owing to statutory limitation or the existence of other circumstances excluding criminal prosecution . ”

“ In respect of criminal offences under the competence of a single judge and where the ORG Attorney has learned of a criminal offence from a reliable criminal complaint , he or she may ask in an indictment that a court issue a penal order ( kazneni nalog ) whereby the court shall impose on the defendant a sentence or an alternative measure without holding a trial .

The relevant provision of ORG ( Zakon o sustavu državne uprave , ORG nos . CARDINAL/CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , DATE ( consolidated text ) , CARDINAL/CARDINAL and CARDINAL/CARDINAL ) , as in force at the material time , read as follows :

“ The head of the regional ORG administration office is appointed and removed by ORG upon a proposal of the ORG secretary responsible for public administration on the basis of a previously conducted public competition . ”

The relevant provision of the LAW on the Government of GPE ( ORG , ORG nos . DATE CARDINAL , CARDINAL/CARDINAL , CARDINAL and CARDINAL/CARDINAL – “ the Government of GPE ” ) , which entered into force on DATE , reads as follows :

“ A decision ( rješenje ) shall be adopted on appointments or dismissals or other individual matters within the ORG ’s purview . ”

LAW ( Zakon o državnim službenicima i namještenicima , Official Gazette no . CARDINAL/CARDINAL ) was in force DATE and DATE .

Section CARDINAL(CARDINAL ) set out impediments to recruitment to the civil service and provided that such an impediment existed in respect of a person who had been convicted by a final judgment for , inter alia , a criminal offence against the rights and freedoms of man and the citizen , or a criminal offence against property .

Section CARDINAL provided that a civil servant ’s employment was to be terminated by operation of law , inter alia , when the judgment by which he or she had been convicted for a criminal offence referred to in section CARDINAL(CARDINAL ) of the same Act became final , or when it was discovered that an impediment referred to in the same section had existed at the time of recruitment .

Sections CARDINAL of LAW ( Zakon o upravnim sporovima , ORG of ORG no . CARDINAL/CARDINAL , and ORG nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and DATE ) provide for the remedy of reopening of proceedings before ORG and regulate the procedure following a petition for reopening . In particular , section CARDINAL reads as follows :

“ Proceedings ... shall be reopened upon a petition by a party :

CARDINAL ) if the party learns of new facts or discovers , or gains the opportunity to use , new evidence on the basis of which the dispute would have been resolved more favourably for him or her had these facts or evidence been presented or used in the previous court proceedings ;

CARDINAL ) if the decision was based on a judgement rendered in a criminal or civil case and that judgement was later set aside by another final court decision ;

A reopening shall be allowed on the grounds set forth in subsections ( CARDINAL ) and ( CARDINAL ) of this section , only if the party was unable , through no fault of his or her own , to raise these grounds in the previous proceedings . ”

Section CARDINAL provides that if LAW does not contain specific provisions on procedure before ORG ( that is , in administrative disputes ) , the provisions of LAW should apply mutatis mutandis .

The relevant provision of LAW ( Zakon o parničnom postupku , ORG of ORG nos . CARDINAL , CARDINAL/CARDINAL ( corrigendum ) , CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , DATE , DATE , DATE , CARDINAL/CARDINAL and CARDINAL/CARDINAL , and ORG nos . CARDINAL , GPE , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL and GPE ) reads as follows :

“ ( CARDINAL ) When ORG has found a violation of a human right or fundamental freedom guaranteed by LAW thereto ratified by GPE , a party may , within DATE of the judgment of ORG becoming final , file a petition with the court in GPE which adjudicated in the first - instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered , to set aside the decision by which the human right or fundamental freedom was violated .

( CARDINAL ) The proceedings referred to in paragraph ( CARDINAL ) of this section shall be conducted by applying , mutatis mutandis , the provisions on the reopening of proceedings .

( CARDINAL ) In the reopened proceedings the courts are required to respect the legal opinions expressed in the final judgment of ORG finding a violation of a fundamental human right or freedom . ”


Violation of Art. 2 with regard to death;Violation of Art. 2 with regard to effectiveness of investigation;No violation of Art. 3;Not necessary to examine Art. 6;Violation of Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicants ( see paragraph CARDINAL ) , who were born in DATE , DATE , DATE , DATE , DATE , DATE , and DATE respectively , are the wife and children of the deceased , ORG , who was killed in DATE while he was under custody .

Until DATE , the PERSON family resided in the ORG village in GPE in province of ORG . When the security forces started to pressurise the ORG family members to become village guards , the family moved to ORG in DATE .

On DATE of the applicants , Mr PERSON , went back to Bismil to visit the fields that belonged to his family . When he arrived in Bismil , he was stopped by soldiers and questioned about his father , ORG . He was subsequently taken to the gendarme command , where he was further questioned about his father . During the interrogation , ORG told them where they could find ORG .

On DATE ORG was taken into custody in GPE . On DATE , Hacı saw his father in custody however he was not allowed to speak to him .

On DATE Hacı was released from custody . On DATE , while he was still in ORG , he was informed by an acquaintance that an incident had taken place in the PERSON village and that it concerned his father . Consequently , when ORG went to the PERSON village to find out more about this incident , he met a villager , called ORG , who told him that his father was dead .

On DATE QUANTITY police officers visited ORG 's house in ORG and told ORG 's uncle that ORG had died .

On DATE the applicants ' representatives filed a petition with the public prosecutor attached to ORG . Referring to the investigation that had been commenced into the death of ORG and the decision of non - prosecution that had been delivered by ORG public prosecutor , the applicants ' representatives requested a copy of the arrest and autopsy reports as well as the public prosecutor 's decision of non - prosecution .

NORP The public prosecutor refused to give these documents and noted at the bottom of the petition the following :

“ It has been decided [ by this office ] that no prosecution should be brought about the death of PERSON [ Note : ORG 's name is spelled out as GPE in the public prosecutor 's note . ] pursuant to LAW . The investigations in order to apprehend the co - activists of PERSON are still ongoing . A copy of the investigation file could not have been given [ to the representatives ] in accordance with the relevant provisions of the LAW , as it would constitute disclosure of the content and the subject matter of the investigation file . ”

On DATE ORG was taken into custody by the gendarmes from the ORG on suspicion of membership of the ORG , proscribed as a terrorist organisation . He was suspected of aiding and abetting the ORG terrorists .

On an unspecified date ORG gave a statement to the gendarmes . He stated that the ORG terrorists were occasionally staying in his house and that he was providing them with food and military equipment such as weapons , clothes and medicine . He further stated that he had dug a shelter with the terrorists on the slopes of a hill near LOC in the Sarıhüseyin hamlet attached to the Serçeler village to hide some equipment .

On DATE ORG was taken to ORG for medical examination . According to the medical report , there were no signs of ill - treatment on his body .

On DATE at TIME the gendarmes conducted a search to find out the location of the shelter that had been mentioned by ORG in his statement . ORG guided the soldiers to the shelter near the ORG road in the GPE village . While protecting themselves in a secure distance , the soldiers asked him to open the cover of the shelter . As he opened the cover , the soldiers witnessed a big explosion , which tore ORG 's body into pieces . The explosives had been placed in the entrance to the shelter by other members of the ORG and the soldiers found weapons , medical equipment and clothes in the shelter . The incident was further reported to the ORG public prosecutor .

On DATE an on - site examination was conducted by the ORG public prosecutor together with a doctor . According to an onsite body examination , it was established that both legs were severed as a result of the explosion . No other signs of injury were observed on the dismembered body . The doctor decided that it was unnecessary to conduct a full autopsy on the body . ORG 's corpse was then given to Mr PERSON , a member of the ORG village assembly . An incident report was further drafted by the gendarmes and was signed by CARDINAL non - commissioned officers and the village mayor Mr ORG .

On DATE the public prosecutor at ORG decided that no prosecution should be brought against ORG on account of his membership of the ORG on the ground that he had died on CARDINAL DATE .

On DATE the ORG public prosecutor accused the non - commissioned officer , Mr PERSON , of failing to take the necessary precautions when ORG had been asked to open the cover of the shelter and of causing ORG death through negligence . However , as the public prosecutor did not have the jurisdiction to bring proceedings against the non - commissioned officer , he declared lack of jurisdiction and transferred the case file to ORG .

Subsequently , ORG appointed a major as a rapporteur to conduct further investigations into the killing of ORG . On DATE the major took statements from the non - commissioned officers , Mr PERSON , Mr PERSON and PERSON , who had been on site during the incident of DATE . The officers stated that ORG had been taken into custody on suspicion of membership of the ORG and had confessed that he had been aiding and abetting the terrorists , providing them with food , clothes , weapons and medical equipment . The soldiers further stated that ORG had mentioned a shelter which was used by the terrorists and when he was taken to the site to show the place of the shelter , the gendarmes had positioned themselves far from the shelter to prevent any loss of life . The soldiers explained that ORG was asked to open the shelter , however he had died as a result of the explosion . The officers finally stated that medical equipment and clothes had been found in the shelter .

Basing himself on the statements of the CARDINAL accused non - commissioned soldiers , the incident and the body examination reports , on DATE the rapporteur submitted his report to ORG . He concluded that the security forces had taken all the necessary precautions before ORG was asked to open the cover of the shelter . The report further stated :

“ Having regard to the fact that ORG had confessed that he had dug a shelter [ with the other terrorists ] it was presumed that he could have known the place of the shelter and that he could have safely opened its cover himself . After the necessary safety measures had been taken , he had been asked to open the cover . However , he had died in an explosion . The explosives had been previously placed there by the terrorists . Neither the security forces nor ORG had noticed the explosives . ”

NORP The report concluded that the security forces had performed their duty with diligence and it was recommended that no prosecution be brought against the members of the security forces .

On DATE the ORG issued a decision stating that no prosecution should be brought against the members of the security forces . The council concluded that ORG had died as a result of the explosion and that the accused members of the security forces had performed their duty with diligence .

On DATE ORG , to which the case had been automatically referred to by law , upheld the decision of ORG .

( a ) Arrest report , dated DATE , drafted by ORG ;

( b ) Custody records , dated DATE which indicate that ORG was taken into custody on DATE at TIME ;

( c ) Undated statement of ORG ;

( d ) Medical report dated , DATE ;

( e ) Report of incident , dated DATE ;

( f ) Sketch map of scene of incident , dated DATE ;

( g ) Autopsy report dated , CARDINAL DATE ;

( h ) Non - jurisdiction decision of the ORG public prosecutor 's office , dated DATE ;

( i ) Statements of the CARDINAL non - commissioned officers , Mr PERSON , Mr PERSON and PERSON , dated DATE ;

( j ) Non - prosecution decision of ORG , dated DATE , delivered against ORG ;

( k ) Non - prosecution decision of ORG , dated DATE ;

( l ) Decision of ORG , dated DATE , upholding the decision of ORG ;

( m ) Petition of the applicants ' representatives to ORG public prosecutor 's office dated DATE and the subsequent rejection of the public prosecutor ;

( n ) Undated statement of ORG and ORG concerning the application .

In respect of relevant domestic legislation , the ORG refers to its case - law in GPE v. GPE ( no . CARDINAL/CARDINAL , § § DATE , ECHR CARDINALXII ) .


Violation of Art. 6-3-c;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

ORG The applicant , Mr PERSON , is a NORP citizen born in DATE . He lives in GPE , GPE .

On DATE CARDINAL masked men , armed with a shotgun and a knife , carried out a robbery at a post office in GPE , GPE , GPE , in the course of which they assaulted CARDINAL post - office employees . They also caused damage to a motor car .

Following investigations , Mr PERSON and CARDINAL other men were arrested and remanded in custody . The applicant was indicted on a charge of assault and armed robbery , a charge of wilful damage and CARDINAL charges relating to firearms . DATE and DATE he stood trial in the High Court of Justiciary sitting in GPE .

ORG The applicant received legal aid for the preparation of his defence and for his representation by counsel at the trial .

ORG During the trial a prosecution witness , PERSON , entered the courtroom prior to giving evidence and spoke to one of the applicant ’s co - accused , against whom charges had been dropped . When PERSON was called to give evidence , the applicant ’s counsel objected on the basis of her earlier presence in court . The trial judge adjourned the case and instructed prosecuting counsel to make further inquiries into the matter so that it could be determined whether PERSON attendance was due to any negligence or failure on the part of the ORG . Prosecuting counsel informed the judge that inquiries had revealed no fault on the part of anyone for whom the ORG bore responsibility . This was not disputed by the applicant ’s counsel , who , moreover , was unable to give any indication as to how PERSON evidence could be affected by her earlier presence in court . The trial judge accordingly took the view that no injustice would be done by PERSON examination . Finding that the relevant legal conditions were satisfied ( see paragraph CARDINAL below ) , he therefore exercised his discretion and permitted her to give evidence . Subsequently , counsel for the applicant had the opportunity to cross - examine PERSON on the matter of her attendance in court .

In her evidence , PERSON stated that the applicant had been at her home TIME before the robbery and had spoken of robbing the post office . TIME he had left the house and returned later with a bag , in a state of nervousness . Other evidence against the applicant included the fact that a shotgun and various items stolen from the post office were found on the applicant ’s LOC . In addition , a different witness identified Mr PERSON as being one of the robbers and PERSON statement was supported by her DATE daughter .

ORG The jury found the applicant guilty on all the charges . Taking account of his numerous previous convictions , the judge sentenced him to CARDINAL years’ imprisonment .

ORG On DATE the applicant , through his solicitor , lodged an intimation of intention to appeal against conviction .

Mr Boner instructed new solicitors , who asked a different counsel to advise on the prospects of an appeal and to draft a note of appeal .

In his opinion dated DATE counsel stated his view that the only possible ground of appeal related to the " admissibility of the evidence of PERSON " and to the question " that the trial judge erred in exercising discretion in allowing her to be present " . However , he conceded that he had not been provided with sufficient information to be able properly to base an opinion or to frame grounds of appeal . Notwithstanding this acknowledgement he did draft a note of appeal which contained CARDINAL grounds , the first CARDINAL of which concerned the trial judge ’s decision to admit the witness . This note of appeal was filed by the applicant ’s solicitors on DATE .

ORG Up to this point all the work had been covered by the legal aid granted for the trial . An application to extend legal aid to the appeal proceedings had been submitted in DATE . On DATE ORG ( " the Board " ) asked the applicant to provide an opinion from counsel on the prospects of success . The earlier opinion dated DATE was accordingly forwarded to ORG , together with a supplementary opinion from the same counsel dated DATE . In this latter opinion counsel reiterated the view that the appeal rested on the question whether PERSON evidence was admissible . However , he again stated that he had not been provided with sufficient material on which to assess the merits of the appeal . " I regret meantime I am unable to answer the fundamental question in this case " , he concluded .

ORG On DATE the applicant ’s solicitors informed the ORG by telephone that counsel had finally decided that he could not support the application for legal aid or the appeal ; that they were of the same view ; and that , consequently , they could no longer act for the applicant . The terms of that telephone call were confirmed in a letter dated DATE from the solicitors to ORG .

ORG On DATE ORG notified Mr PERSON ’s solicitors that his application for legal aid had been refused as the ORG was not satisfied , as it was required to be under the relevant legislation ( see paragraph CARDINAL below ) , that he had substantial grounds for taking an appeal and that it was reasonable that he should receive legal aid . In a letter of DATE to the applicant the ORG added that it could not see any merit in the appeal . Despite the advice of his solicitors and counsel , Mr PERSON decided to proceed with the appeal .

ORG The applicant , who had no legal knowledge and had no assistance with his submissions , presented his own case on DATE before ORG of Justiciary , sitting in GPE and acting as an appellate court . The ORG was represented by counsel . There is no indication in the record that the court required counsel for the ORG to address it .

ORG The appeal court considered the first CARDINAL grounds of appeal relating to PERSON and held that these were ill - founded and that the trial judge had approached the matter properly . As the applicant did not address the court on the remaining grounds of appeal , these were not considered by the court . It did however examine other points raised by the applicant , but reached " the clear conclusion that there was no miscarriage of justice in the case " . The appeal against conviction was unanimously dismissed .

ORG Under NORP law , a witness who has been present in court without the court ’s permission and without consent from the opposite party may still be allowed to give evidence provided that " it appears to the court that the presence of the witness was not the result of culpable negligence or criminal intent , and that the witness had not been unduly instructed or influenced by what took place during his presence , or that injustice will not be done by his examination " ( section CARDINAL of the Criminal Procedure ( GPE ) Act DATE - " LAW " ) .

ORG The following details relate solely to the " solemn procedure " , under which trial proceeds upon an indictment before a judge sitting with a jury .

ORG A person convicted of a criminal charge in GPE has an automatic right of appeal granted by statute ( section CARDINAL of LAW ) . No leave to appeal is required .

ORG In an appeal , the appellant may ask the court to review any alleged miscarriage of justice in the proceedings in which he was convicted ( section CARDINAL(CARDINAL ) of LAW ) . What is a miscarriage of justice is not defined by statute , but the term covers such matters as misdirections by the trial judge or wrong decisions on the admissibility of evidence , as well as breaches of natural justice . In any appeal , the nature of the alleged miscarriage of justice must be specified in the grounds of appeal contained in a written note of appeal , lodged within DATE of the date when sentence was imposed upon the appellant ( section PERSON ) and ( CARDINAL ) of LAW ) . An appellant may not , at the appeal hearing , found any aspect of his appeal on a ground which is not contained in the note of appeal unless , exceptionally and on cause shown , he obtains the leave of the court to do so ( section CARDINAL ) of LAW ) .

ORG An appeal is heard by a bench of not CARDINAL judges . At the hearing of the appeal the appellant or his counsel , if he is represented , makes submissions to the court in support of the grounds of appeal . Appellants who do not have legal representation are not required to make an oral presentation : they are allowed , however , to read any material that they may have prepared or collected .

The ORG is always represented by counsel at the hearing of criminal appeals . Their duty is to act solely in the public interest and not to seek to uphold a wrongful decision . Accordingly , they will only address the court if requested to do so or if it is necessary to bring to the attention of the court some matter relevant to the appeal , whether or not favourable to the prosecution .

ORG In disposing of an appeal against conviction the court may dismiss it and affirm the verdict of the trial court ; set aside the verdict of the trial court either by quashing the conviction or by substituting an amended verdict of guilty ; or set aside the verdict of the trial court and authorise a new prosecution ( section CARDINAL of LAW ) .

ORG Counsel in GPE are vested with the public office of advocate , which imposes a number of duties upon them , among which is the duty not to accept instructions to act in circumstances where , in their professional opinion , a case is manifestly unfounded , even if the client is able to pay for such representation .

The basis of this rule of professional conduct is that counsel can not properly occupy the time of the court in advancing arguments which he knows to be without foundation .

ORG The administration of legal aid in GPE is the responsibility of ORG , an independent body whose members are appointed by the Secretary of ORG for GPE from among counsel , solicitors and other persons with experience of the courts .

Legal aid which has been made available for a trial on indictment extends , in the case of conviction , to include consideration and advice by a solicitor on the question of appeal . An opinion on the prospect of the appeal can also be obtained from the counsel who acted at the trial .

Under special provisions legal aid is also available to enable the solicitor to prepare and lodge the statutory intimation of intention to appeal and , where appropriate , arrange for the opinion of counsel to be obtained as to the prospects of the appeal , and for the drafting and lodging of a note of appeal setting out the grounds of appeal .

ORG To extend legal aid beyond this point a further application by the solicitor to ORG is required . This should include confirmation that the applicant ’s solicitor is willing to act in the appeal as well as a statement of the arguments in support of the grounds of appeal and a note of the solicitor ’s reasons for believing that the grounds of appeal are substantial and that legal aid should be made available .

ORG The ORG takes its decisions on the basis of the documents before it , which normally include copies of the note of appeal , the trial judge ’s charge to the jury and the trial judge ’s report on the case . The views expressed by the applicant ’s solicitor and counsel will also be taken into account .

ORG Although the legislation does not provide for a formal review , ORG will , as a matter of practice , when requested to do so , reconsider an application which has been refused . Such reconsideration involves the application being referred to an external reporter , who was not involved in the ORG ’s earlier decision and who reports to ORG on the merits of the application . Otherwise , Board decisions are subject to ordinary judicial review .

ORG If the appellant proceeds with his appeal without legal aid and the court considers that , prima facie , he may have substantial grounds for taking the appeal and it is in the interests of justice that he should have legal representation in arguing these grounds , the court must immediately adjourn the hearing and make a recommendation that the ORG ’s decision be reviewed .

ORG The practice of the court in this regard was formalised following the judgment of ORG in PERSON v. GPE no . CARDINAL ) by a Practice Note to this effect issued on DATE by the Lord Justice General to all Appeal Court Chairmen and Clerks :

" In any appeal where legal aid has been refused and the court considers that prima facie an appellant may have substantial grounds for taking the appeal and it is in the interests of justice that the appellant should have legal representation in arguing his grounds , the court shall forthwith adjourn the hearing and make a recommendation that the decision to refuse legal aid should be reviewed . "

ORG Where such a recommendation is made , legal aid is automatically granted . To this end , ORG provides in paragraph CARDINAL that :

" In these circumstances ORG will receive a letter from ORG of Justiciary giving the details of the case where they are recommending a re - consideration of the decision to refuse . If we are asked to re - consider a decision in these circumstances , then the application should be granted automatically . The case need not be seen by a reporter or ORG solicitor , but ought to be referred to the Assistant Manager for the appropriate action . "


The applicants , PERSON , and PERSON , are NORP nationals , who were born in DATE and DATE , respectively , and live in GPE . The first applicant is represented before the ORG by the second applicant .

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

Until DATE at the time of retirement a person was granted , inter alia , ( a ) an employment pension which was counted on the basis of his or her salary earned prior to the retirement , amounting to a maximum of CARDINAL per cent of that salary , and ( b ) a national pension ’s basic amount ( kansaneläkkeen pohjaosa , folkpensionens basdel ) , if the person was entitled thereto on the basis of his age and/or number of DATE of employment .

DATE , employees were obliged by law to deposit part of their salaries in individual accounts kept by ORG for the purpose of accumulating employment pensions for their retirement . From DATE onwards these contributions were no longer deposited on accounts earmarked for the employees themselves but went into the general pension fund .

The CARDINAL parts of the pension ( the above - mentioned ( a ) and ( b ) ) were considered together with the result that a pensioner ’s employment pension was reduced by the amount of the national pension ’s basic amount so that the total amount did not exceed the maximum limit of CARDINAL per cent of his salary . The national pension ’s basic amount was granted to all persons entitled to it without their requesting it ( although it was apparently possible to refuse it ) , reducing automatically the amount of the employment pension .

In DATE LAW was amended ( Act no . CARDINAL/CARDINAL ) as a budgetary savings measure to the effect that , as from DATE , the national pension such as the old - age pension was to be replaced by a pension calculated with reference to new criteria . Those whose total income in the form of other pensions and various entitlements exceeded certain ceilings would no longer be entitled to a national pension . In such a case the so - called basic amount of their national pension would be reduced by MONEY annually DATE , when payment thereof would cease .

Following a public debate on the matter ORG passed LAW ( CARDINAL/CARDINAL ) on DATE , according to which pensioners whose employment pension has been twice reduced on the basis of their national pension ’s basic amount , are entitled to receive a compensation for their loss as from DATE . The compensatory amount will be CARDINAL per month , depending on the amount of the pension at issue . The applicants in the present case will not benefit from LAW as their pensions were reduced only once . So they will not receive any compensation for their loss .

The applicants are CARDINAL retired social workers . They both worked for GPE for DATE until their retirement in DATE when they were granted an employment pension but no national pension ’s basic amount as they had not yet reached the required age . Their employment pensions amounted to MONEY of their salaries .

In DATE , when they reached DATE , they were granted a national pension ’s basic amount of FAC ( MONEY ) per month . The CARDINAL pensions ( a ) and ( b ) were , however , considered together with the result that the total amount of the CARDINAL pensions was the same as the earlier pension had already been ( MONEY of the applicants’ salaries ) .

In DATE their national pension ’s basic amounts were affected by the LAW as described above . That lead to a situation in which the applicants now only receive a pension which is MONEY of their salaries on which their pensions were originally based .

The applicants have used all domestic remedies . The appeal instance decisions were given by ORG in DATE . According to the decisions of the domestic courts , it is impossible to revoke the reduction of the pensions which is based on the amendment to LAW as the courts can not override a law . The applicants have also complained to ORG without any success .


Anatoly Kovler;Costas Clerides;George Nicolaou;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

NORP The applicant , Mr PERSON , alias PERSON , is a NORP national who was born in DATE . He is currently serving a mandatory sentence of life imprisonment for premeditated murder in LOC . He is represented before the ORG by PERSON , a lawyer practising in GPE . The respondent Government ( “ the Government ” ) were represented by their Agent , Mr PERSON , Attorney - General of GPE .

NORP The background facts of the case are set out in ORG judgment of DATE concerning the applicant ’s first application before the Court ( NORP v. GPE [ ORG ] , no . CARDINAL , § § DATE , ECHR DATE ... ) .

On DATE the applicant lodged an application with the ORG ( application no . CARDINAL ) against GPE under LAW of the LAW . The applicant alleged that ORG , DATE , DATE and CARDINAL of the Convention had been violated as a result of his life sentence and continuing detention .

NORP In a judgment of CARDINAL DATE ORG held that there had been a violation of LAW with regard to the quality of the law applicable at the time the applicant had committed the offence ( see PERSON , cited above , § § CARDINAL - CARDINAL ) . At the same time , however , it concluded that there had been no violation of DATE in so far as the applicant complained about the retrospective imposition of a heavier penalty with regard to his sentence and the changes in the prison law exempting life prisoners from the possibility of remission of their sentence ( ibid . ) .

With regard to the applicant ’s other complaints under LAW and LAW , the Grand Chamber found that there had been no violation .

With regard to LAW , ORG held , inter alia , that although the prospect of release for prisoners serving life sentences in GPE was limited , any adjustment of a life sentence being only within the President ’s discretion subject to the agreement of the Attorney - General , it could not be said that life sentences in GPE were irreducible with no possibility of release ; on the contrary , it was clear that in GPE such sentences were both de jure and de facto reducible . This was so in spite of the shortcomings in the procedure . ORG considered therefore that the applicant could not claim that he had been deprived of any prospect of release or that his continued detention as such , even though long , constituted inhuman or degrading treatment ( ibid . , § § CARDINAL ) .

As to LAW , the Grand Chamber held that the continuing detention of the applicant after DATE was justified under LAW a ) of the LAW and that therefore there had been no violation of LAW . In this connection it held that the applicant had been sentenced to life imprisonment for the remainder of his life as provided by LAW and not for DATE and that the fact that he had subsequently been given a notice by the prison authorities , on the basis of FAC in force at the time , setting a conditional release date could not , and did not , affect the sentence of life imprisonment passed by ORG or render his detention beyond the above date unlawful ( ibid . , § § CARDINAL - CARDINAL ) .

Finally , ORG held that the applicant ’s complaint under LAW fell outside the scope of its examination as it had been raised for the first time in his memorial to FAC and was not covered by the ORG ’s decision on admissibility of DATE ) ( ibid . , § CARDINAL ) .

As to the application of LAW , ORG considered that a finding of a violation of LAW constituted in itself sufficient just satisfaction in respect of any non - pecuniary damage suffered by the applicant ( ibid . , § CARDINAL ) . However , it ordered GPE to pay the sum of MONEY in respect of costs and expenses ( ibid . , § § DATE ) .

ORG concluded its supervision of the execution of the Grand Chamber ’s judgment at its CARDINAL meeting ( DH ) held from DATE , at which it adopted a decision instructing the ORG to prepare a draft final resolution . The text of the ORG ’s public notes reads as follows :

“ This case concerns the infringement of the principle ‘ no punishment without a law’ on account of the quality of the law applicable at the material time ( DATE ) , which did not enable the applicant to discern precisely the scope of the penalty of life imprisonment and the manner of its execution ( violation Art . CARDINAL ) . ORG observed that the legal basis for the applicant ’s conviction and sentence was the criminal law applicable at the material time and his sentence , that was mandatory life imprisonment , corresponded to that prescribed under section CARDINAL(CARDINAL ) of LAW for the offence of premeditated murder . However , according to ORG , at the time the applicant committed the offence , it was equally clear that both the executive and the administrative authorities , including the prison service , understood FAC as imposing a maximum period of DATE to be served by any person who had been sentenced to life imprisonment . In DATE , in the PERSON case , ORG interpreted life imprisonment as meaning ‘ imprisonment for life’ , and , in DATE , ORG , when passing sentence on the applicant , relied on the findings of ORG . The ORG therefore concluded that , at the time the applicant committed the offence , NORP law taken as a whole was not formulated with sufficient precision as to enable the applicant to discern , even with appropriate advice , to a degree that was reasonable in the circumstances , the scope of the penalty of life imprisonment and the manner of its execution . On the contrary , the ORG did not accept the applicant ’s argument that a heavier penalty was retroactively imposed on him since it could not be said that at the material time the penalty of a life sentence could clearly be taken to have amounted to DATE imprisonment .

Individual measures : ORG held that the finding of a violation constituted in itself sufficient just satisfaction for the non - pecuniary damages sustained by the applicant . It also found a non - violation of DATE as regards the applicant ’s complaint that the amendment of the prison regulations subsequent to his being sentenced made it impossible for him to expect a remission of sentence . The violation found in this case consists only in the fact that the law applicable at the time the applicant committed the offence did not enable him to discern precisely the scope of the penalty of life imprisonment and the manner of its execution . When ORG sentenced the applicant , it was already clear that life imprisonment had become imprisonment for the rest of one ’s biological life .

General measures : Following ORG judgment in the case of PERSON against GPE ( judgment of DATE , ( CARDINAL A.A.D. CARDINAL ) , which declared the Prison ( General ) Regulations of DATE , as amended in DATE , unconstitutional , these Regulations were repealed in DATE . According to the new regulations the imposition of mandatory imprisonment has become imprisonment for the rest of one ’s biological life , thereby excluding any possibility of remission for life prisoners .

• Legislative change : Following the judgment , the PERSON establishing a parole board was finalised ( details of the bill are mentioned at paragraph CARDINAL of ORG judgment ) . The PERSON has received governmental approval and is currently being examined in detailed by ORG . As the violation relates to historical provisions , the bill is not a key aspect of the general measures . However , its goal is to improve the rights of life prisoners . The bill will fix a minimum period to be served before life prisoners can become eligible for parole and establish an independent parole board .

ORG and dissemination : Under cover of a letter from ORG summarising the judgment and its reasoning , copies of the judgment were sent to ORG , the Presidents of ORG and ORG Human Rights Parliamentary Committees . It has also been published on ORG website ... and widely publicised and discussed in the media . ”

The adoption of a final resolution by ORG is still pending .

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

By letter dated DATE the applicant applied , via ORG , to the President of the Republic for pardon or conditional release .

NORP By letter dated DATE the Attorney - General refused his request . In particular , he informed the applicant that following an examination of his application , a recommendation to the President to suspend his sentence under LAW ) of the LAW was not justified .

On DATE the applicant lodged a new habeas corpus application ( no . CARDINAL ) before ORG ( first - instance jurisdiction ) .

He complained under LAW and Articles CARDINAL and CARDINAL of the LAW . The applicant claimed , inter alia , the following :

The applicant lodged an appeal on DATE ( no . GPE ) with ORG ( appeal jurisdiction ) . The applicant challenged the findings of the first - instance court .

His appeal was dismissed on DATE . ORG in its judgment relied on the findings of ORG .

With regard to the applicant ’s complaint under LAW , ORG observed that ORG in its judgment , when examining LAW , had not doubted the general adequacy of the NORP system , even if the prospect of release was limited . ORG relied on paragraph ORG of ORG judgment :

“ In his submissions , the applicant has placed great emphasis on the lack of a parole board system in GPE . However , the ORG reiterates that matters relating to early release policies including the manner of their implementation fall within the power member GPE have in the sphere of criminal justice and penal policy ( see , mutatis mutandis , PERSON , cited above , § CARDINAL ) . In this connection , the ORG observes that at the present time there is not yet a clear and commonly accepted standard amongst the member ORG concerning life sentences and , in particular , their review and method of adjustment . Moreover , no clear tendency can be ascertained with regard to the system and procedures implemented in respect of early release . ”

ORG observed ( apparently in the context of its examination of LAW ) that ORG judgment did not impose an immediate obligation on the Republic to establish a parole board . In any event , however , ORG considered that the Government should not delay in establishing such a board .

The relevant domestic law and practice concerning life sentences and the release of prisoners is set out in the Grand Chamber ’s judgment of CARDINAL DATE ( PERSON , cited above , § § DATE ) .

In DATE , however , FAC of DATE ( Law CARDINAL(I)/CARDINAL as amended – ibid . , § § DATE ) was amended by Amending PERSON , which entered into force on DATE . This PERSON introduced significant amendments to LAW , in particular to section DATE , by providing for the establishment of ORG , an independent board for the release of prisoners on licence ( section CARDINAL ) . Section CARDINAL includes detailed provisions concerning ORG , the procedures to be followed , and the release of prisoners on licence .

Section CARDINAL ( CARDINAL ) provides for the establishment of ORG , whose competence is to examine and determine , in accordance with the procedures set out in the PERSON , ORG applications for conditional release on licence so that they can continue to serve the remaining part of their sentence outside prison . On DATE the CARDINAL - member board was appointed by ORG . On DATE the ORG ’s members gave the oath required before the President of the Republic that they would faithfully exercise their duties ( section CARDINAL ( CARDINAL ) ) . ORG started operating at DATE .

By section CARDINAL A ( CARDINAL ) , a prisoner who has been sentenced to life imprisonment and has served DATE of the sentence can apply to ORG for conditional release . LAW ) provides as follows :

“ A prisoner who has served CARDINAL of a sentence of imprisonment which exceeds DATE , or who was sentenced to life imprisonment and has served DATE of the sentence , is entitled to submit directly to ORG a written request for conditional release on parole in order to continue to serve the remaining part of the sentence outside prison . ”

Section CARDINAL B ( CARDINAL ) provides that a request for release on parole as provided in LAW CARDINAL A can also be submitted by the following :

“ ( a ) a prisoner who has served CARDINAL of sentences of life imprisonment which run consecutively ;

( b ) a prisoner who has served CARDINAL of the total duration of sentences which run consecutively , other than those mentioned in point ( a ) above , or who , where the longest of his sentences which run consecutively is a sentence of life imprisonment , has served DATE of imprisonment ;

( c ) a prisoner who has served CARDINAL of his sentences of imprisonment which run concurrently or who has served CARDINAL of the longest in duration of his sentences which run only partially concurrently so that the sentence longest in duration exceeds the other sentence or sentences , or who , where the longest sentence is CARDINAL of life imprisonment , has served DATE of it . ”

Section CARDINAL A ( CARDINAL ) provides that ORG decides on the conditions and restrictions which , in the circumstances , it considers appropriate to set for the release on licence of the prisoner in question in order to reduce the risk of recidivism . The conditions or restrictions can subsequently be modified , annulled or supplemented with additional ones ( section CARDINAL E ( CARDINAL ) ) . The applicant has the right to be heard before additional or stricter conditions are set ( section CARDINAL E ( CARDINAL ) ) .

When deciding on a prisoner ’s application for release on licence and on the conditions and limitations to be set for such release , ORG will examine and weigh up a number of factors . These are set out in section CARDINAL H ( CARDINAL ) as being “ ( a ) the degree of dangerousness of the prisoner and the possibility of recidivism ; ( b ) the protection of society by preventing possible offences such as those for which the prisoner is serving his or her sentence ; and ( c ) any personal , family or other circumstances which may justify the prisoner ’s conditional release on licence , without , however , jeopardising the safety of society ” . This section provides that the second factor is particularly significant concerning applications by prisoners who are serving a sentence of life imprisonment or long - term sentences for violent offences . Further , ORG , in reaching its decision in a particular case , will take into account a number of factors , including the type of offence or offences of which the prisoner was convicted , written comments made by the court in imposing the sentence , the prisoner ’s criminal record , the prisoner ’s intentions and plans for his or her successful and law - abiding integration into society , the prisoner ’s conduct in prison , the report of the prison forensic psychiatrist and the prisoner ’s degree of dangerousness ( see section CARDINAL H ( CARDINAL ) ) .

Section CARDINAL I ( CARDINAL ) provides , inter alia , for an interview of the prisoner by ORG . At the interview , the prisoner has the right to be legally represented and to call witnesses and experts ( section CARDINAL I ( CARDINAL ) ( b ) ( i ) ) . ORG has the obligation to hear the prisoner as well as his or her witnesses , experts and lawyers , to accept and examine any written information material and evidence which the prisoner submits , to allow the prisoner or his or her representative to examine or inspect , prior to the oral interview , any written information material which ORG has obtained in relation to the application for release on licence , and to put such material at the prisoner ’s disposal during the interview . A record is kept of the interview ( section CARDINAL ( I ) ( CARDINAL ) ) .

The DATE ’s decisions are given in writing and must be reasoned ( section CARDINAL J ( CARDINAL ) ) .

A prisoner whose application is dismissed by ORG can file another application after the lapse of a DATE period or , if he or she is serving a life sentence or a sentence exceeding DATE , after the lapse of a DATE period ( section CARDINAL C ( CARDINAL ) ) .

In the event that a prisoner fails to comply with a condition or restriction relating to his or her release , ORG can decide to revoke its decision to release the prisoner on licence after having given him or her the opportunity to be heard ( section CARDINAL F ( CARDINAL ) ) .

Decisions of ORG can be challenged before ORG by way of administrative recourse under LAW ( section QUANTITY ) ) .


The applicant , PERSON , born in DATE , was a NORP national until DATE and is now stateless . He is currently living in GPE . He is represented before the Court by Mr PERSON , a lawyer practising in GPE .

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

The applicant went to GPE in DATE and was legally resident there . In DATE he married an NORP national with whom he has had CARDINAL children , born in DATE and DATE respectively . In DATE the applicant requested NORP citizenship .

On DATE ORG ( PERSON für PERSON ) convicted the applicant of attempting to put into circulation large amounts of narcotic drugs , as well as certain minor offences under LAW , and sentenced him to CARDINAL months’ imprisonment .

On DATE the applicant renounced his NORP nationality in order to be able to obtain NORP nationality .

On DATE , ORG ) issued an unlimited residence prohibition against the applicant under LAW § § CARDINAL and CARDINAL of LAW DATE ( PERSON DATE ) .

On DATE ORG ) dismissed the applicant ’s appeal . Referring to the applicant ’s living with an NORP national and their having CARDINAL children , it found that the residence prohibition constituted an interference with the applicant ’s right to respect for his private and family life . However , having regard to the serious nature of the offences committed by him , it was necessary for the aims set out in LAW , namely for the prevention of crime and the protection of health and public safety .

On DATE ORG detained the applicant with a view to his expulsion . It requested the NORP embassy to issue a travel document , which was refused on the ground that the applicant had renounced his NORP nationality . He was released on DATE as his expulsion could not be carried out due to his statelessness .

On DATE ORG ( Unabhängiger Verwaltungssenat ) found , upon the applicant ’s complaint , that his above detention had been unlawful . It noted that , pursuant to section CARDINAL of LAW DATE , an alien could be detained if this was necessary , inter alia , for securing his deportation . The applicant was stateless and his expulsion to GPE was , thus , impossible . ORG had been informed about the applicant ’s statelessness well before DATE . It followed that , from the outset , his detention could not possibly have served the purpose of securing his deportation .

On DATE ORG refused to deal with the applicant ’s complaint concerning the residence ban as it lacked sufficient prospects of success .

On DATE ORG dismissed the applicant ’s complaint . The decision was served on DATE .

The applicant still lives in GPE . His request for NORP citizenship remained unsuccessful and he is , according to his own submissions , still stateless . He and his wife divorced in DATE . The applicant submits that they are planning to remarry but are prevented from doing so as he has no passport . A number of requests to have the residence ban quashed under LAW DATE , which has meanwhile entered into force , were dismissed .


Violation of Article 6 - Right to a fair trial

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva

NORP The applicant company is registered in Dnipropetrovs’k .

On DATE the applicant company lodged a claim with the Dnipropetrovs’k ORG against ORG ( “ the Bank ” ) seeking compensation for damages because of the latter ’s failure to withdraw a sum of money from the account of a third party , PERSON , in the framework of enforcement proceedings against S.

By decision of CARDINAL DATE , the court found against the applicant company . On DATE the Dnipropetrovs’k ORG of Appeal dismissed an appeal lodged by the applicant company and upheld the decision of the first - instance court .

NORP By decision of DATE , ORG , on the applicant company ’s appeal , quashed the decisions of the lower courts and found for the applicant company .

On DATE ORG , upon appeal by the ORG , quashed the resolution of ORG on the ground that that court ’s findings had been unfounded and erroneous , and upheld the decisions of the first - instance and the appellate courts .

The relevant provisions read as follows :

“ State power in GPE is exercised on the principles of its division into legislative , executive and judicial power .

Bodies of legislative , executive and judicial power exercise their authority within the limits established by this LAW and in accordance with the laws of GPE . ”

“ ORG in GPE is administered exclusively by the courts ...

The jurisdiction of the courts extends to all legal relations that arise in the ORG .

Judicial proceedings are performed by ORG and courts of general jurisdiction ... ”

“ In GPE the system of courts of general jurisdiction is formed in accordance with the territorial principle and the principle of specialisation .

ORG is the highest judicial body in the system of courts of general jurisdiction ... ”

“ ORG of GPE is the sole body of constitutional jurisdiction in GPE .

ORG decides on issues of conformity of laws and other legal acts with LAW , and provides the official interpretation of LAW and the laws of GPE . ”

Article CARDINAL of LAW ( at the material time ) provided as follows :

“ ORG of GPE , following consideration of an appeal in cassation , or a request for review in cassation lodged by ORG against a resolution of ORG of GPE , shall be entitled to :

CARDINAL ) NORP leave the resolution unchanged and dismiss the appeal ( request ) ;

CARDINAL ) NORP quash the resolution and remit the case to the first - instance court for further consideration ;

CARDINAL ) NORP quash the resolution and nullify the proceedings in the case . ”

Other relevant domestic law is summarised in the case of ORG and PERSON ( see ORG and PERSON v. GPE , nos . CARDINAL and CARDINAL , § § CARDINAL , DATE ) .


Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

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

On DATE and DATE the applicant was examined by CARDINAL medical commissions and found to be in good health and fully fit for military service .

On the basis of the medical reports , the decision was made to call the applicant up for DATE of mandatory military service in ORG forces .

The applicant was assigned to serve in military unit no . DATE in GPE . In the unit he was allegedly harassed and ill - treated by senior conscripts and the unit sergeant on account of his NORP ethnic origin .

According to the applicant , in DATE he attended a drivers’ training course . In the car park the commander told the applicant and CARDINAL other conscripts to take the back axle of a ORG lorry to another place . The applicant injured his spine and later on DATE he was also severely beaten and kicked by senior conscripts for failing to bring the axle close enough to the lorry . On the course the following morning he asked for medical assistance , but the commander refused his request . The applicant did not complain about these events to a prosecutor or any other official .

On DATE the applicant was transferred to military unit no . CARDINAL in GPE ( later renumbered as no . CARDINAL ) . According to the applicant , a medical officer noted his complaint of pains in his knees , but did not prescribe any treatment . It subsequently transpired during an inquiry that the applicant had complained about recurrent pains in his knees to his superior , PERSON , who had exempted him from physical exercise ( see paragraph CARDINAL below ) .

NORP In DATE Junior Sergeant Ch . , the platoon commander , made the applicant and other servicemen do CARDINAL knee bends outdoors as punishment for their failure to scrub the barracks spotless . Lieutenant D. was present but did not contradict the order . After CARDINAL knee bends , the applicant collapsed and other soldiers took him by the armpits and dragged him into the medical unit .

DATE the applicant received emergency treatment in military unit no . DATE , and then in unit no . CARDINAL until DATE . He could not stand on his own and crawled out of bed propping himself up on the bedposts .

DATE and CARDINAL DATE the applicant was treated in the neurosurgery clinic of the PERSON - on - Don State Medical University . When he was discharged he was diagnosed with a “ closed injury of the spine combined with an impairment of blood circulation at the level of the lower thoracic part of the spinal cord ” and found unfit for work .

On DATE the medical commission of military unit no . CARDINAL examined the applicant at the request of the commander of unit no . CARDINAL and diagnosed him with “ consequences of an acute interruption to the blood flow to the spinal cord in the form of cicatrical - commissural epiduritis , arachnoiditis with a disturbance of the flow of cerebrospinal fluid and minor impairment of sensitivity in the lower extremities ” . It also established that the condition had been “ acquired during military service ” and discharged the applicant as “ partially fit for military service ” .

On DATE the applicant was discharged on account of his disability .

On an unspecified date the applicant ’s mother complained to the military prosecutor of PERSON - on - Don of an abuse of power committed by Lieutenant NORP and PERSON .

On CARDINAL DATE her complaint was forwarded to the military prosecutor of the FAC garrison who in turn sent it on DATE to the military prosecutor of ORG .

In their observations on the admissibility and merits of the case , the Government enclosed copies of statements by Lieutenant NORP and PERSON . , as well as by Privates A.L. , GPE . and ORG , who had started their service on DATE .

On DATE Lieutenant D. stated as follows :

“ In DATE Private Chember was transferred to our unit ... He was assigned to serve in my sub - unit , that is , in the first platoon of the seventh company . Since his transfer into our unit he has started complaining about recurrent pains in his knees . On that ground I exempted him from physical exercise ; he stayed within the premises of the company and did not go anywhere . DATE PERSON was sent for treatment to the sanitary unit because of acute pains in his knees ; I can not tell why it happened . Some time later he was transferred to a hospital in another town ... I have never applied any unlawful methods to PERSON . ”

On the same date Junior Sergeant Ch . testified as follows :

“ I have known Private Chember since DATE ; he served in the seventh company of military unit DATE , in which I acted as the section commander . I point out that Chember often went to the medical unit . I do not know what he complained about . Every time I acted as the officer - on - duty in the platoon , Chember was usually in for treatment in the medical unit . I think he complained about pains in his legs . I did not know Chember very well because he was not from my platoon ... ”

In their similarly worded statements , Privates A.L. , GPE . and ORG indicated that the applicant had complained about his “ weak legs ” since his arrival at military unit no . DATE , that for that reason he had been exempted from physical exercise and squad drill , and that he had often been treated in the medical unit for pains in his legs .

On DATE Captain PERSON , a senior investigator with the military prosecutor ’s office of ORG , issued a decision not to initiate criminal proceedings . The reasoning read as follows , in full :

“ The inquiry established that the fact of abuse of power by Lieutenant NORP and PERSON . had not actually taken place in reality .

It follows from the statement by Lieutenant NORP that PERSON serves under his command . Neither he nor Junior Sergeant Ch . ever abused their power over or used violence against Private Chember or any other military personnel of unit DATE .

It follows from the statement by Junior Sergeant Ch . that neither he nor Lieutenant NORP ever abused their power over or used violence against Private Chember or any other military personnel of unit CARDINAL .

All the servicemen of the seventh company of military unit DATE where PERSON serves DATE have been questioned . They stated that no one had harassed PERSON , and that neither Junior Sergeant Ch . nor Lieutenant D. had ever abused their power over him or any other military personnel of unit DATE .

Thus , the inquiry has established that Junior Sergeant Ch . and Lieutenant D. did not abuse their power over PERSON or any other military personnel of unit DATE , and accordingly no criminal case may be instituted against them because there was no criminal offence . ”

The decision indicated that an appeal against it lay to a higher prosecutor or to a court .

On DATE the applicant ’s mother complained to a higher prosecutor . She wrote , in particular , that her son had never had pains in his knees . She also pointed out that the investigator had not heard the soldiers P. , S. , C. and Sh . , who had been eyewitnesses to the ill - treatment .

On DATE Colonel PERSON , the military prosecutor of ORG , replied that her complaint could not be examined because the materials of the inquiry had been forwarded , on DATE , to ORG . He indicated that the complaint would be considered upon the return of the materials . The applicant did not receive any further information concerning that complaint .

On DATE the applicant lodged a civil action against military units nos . CARDINAL and DATE and ORG of ORG forces for compensation for non - pecuniary damage . He submitted that the injury he had received during his military service caused him physical pain , restricted his day - to - DATE activities , impaired his career and life plans , and brought feelings of frustration and injustice .

The applicant and his counsel asked the court to appoint a forensic medical examination with a view to determining the origin and nature of his injuries .

On DATE the ORG of the PERSON - on - Don Region refused their request by an interim decision :

“ Having heard the parties and studied the case materials , the court finds that the request is unsubstantiated ... because the period when the injury was received is stated in the medical record and that is the period of military service . The establishment of the origin and nature of existing diseases will not help to find those responsible or [ to elucidate ] the circumstances . The case file contains the decision not to initiate criminal proceedings against PERSON . and PERSON , dated DATE . ”

On DATE ORG delivered judgment , by which the applicant ’s claim was dismissed . ORG examined medical evidence produced by the applicant and interviewed his fellow serviceman PERSON who confirmed that Junior PERSON . had forced the applicant and other conscripts to do CARDINAL or more knee bends and that the applicant had collapsed during that exercise . It found as follows :

“ Assessing the collected evidence as a whole , the court finds that the claim is unsubstantiated ... because the [ applicant ] did not show that the damage to his health had been caused by servicemen of the [ ORG ] ; according to his own statements , he fell ill because of excessive ( in his opinion ) physical activity ( physical exercises , carrying the axle of a ORG lorry in his hands ) and because of ill - treatment by senior conscripts and by PERSON . However , the case materials contain the decision not to initiate criminal proceedings against PERSON . and PERSON , dated DATE ... because there was no indication of a criminal offence . Under the current laws , CARDINAL of the mandatory conditions for tort liability for non - pecuniary damage is the fault of the tortfeasor ... ”

The applicant appealed against the interim decision and judgment of DATE .

On DATE ORG dismissed his appeal :

“ The [ first - instance ] court dismissed the claim because it established that the GPE liability for causing damage to the [ applicant ’s ] health had not been proven . The [ regional ] court finds this conclusion correct . On DATE an investigator ... refused to initiate criminal proceedings ... The causal link between the defendants’ actions and the [ applicant ’s ] disability is not established . Experts may not establish the causal link between the defendants’ actions and consequences thereof , only a court is competent to do so . ”

Following the applicant ’s discharge , on DATE he was diagnosed with a second - category disability and became entitled to a civilian disability pension .

The applicant unsuccessfully attempted to claim a military pension . On DATE , DATE , DATE and DATE , his mother received negative responses from ORG of ORG . The claims were rejected because he had not produced documents showing that he had injured his spine during military service . According to these replies , the report of DATE only established that the condition had been diagnosed during his military service and not that it had been acquired during his military service .

In their observations on the admissibility and merits of the case , the ORG submitted a report produced by CARDINAL medical experts ( CARDINAL military and CARDINAL civilian ) on DATE . The report had been commissioned by the assistant to the Chief Military Prosecutor on DATE with a view to determining the nature of the applicant ’s disability , its causes and origin . The experts made their findings on the basis of the criminal case file and the applicant ’s medical records of DATE . In particular , they found as follows :

“ It transpires from the available medical documents that PERSON conditions were chronic . Having regard to PERSON young age , his medical history ( pains in the legs from DATE ) , and chronic development of the condition , the osteochondrosis of the lumbar spine was contracted in childhood as a result of a metabolic disturbance ( dystrophy ) ... The existing inflammatory processes in the spine ( epiduritis and arachnoiditis ) could have appeared ... as a complication of an infectious disease that PERSON may have contracted in childhood , such as influenza , tonsillitis , pharyngitis , and so on . These spinal conditions were also of a chronic and continued nature ... which is confirmed by the presence of cicatrical - commissural epiduritis and commissural arachnoiditis , and complaints of pains in the legs from the beginning of military service and before conscription .

No objective confirmation that these conditions had been caused by trauma could be found in the available medical records or case - file materials .

PERSON diseases were chronic and continuing and could have been caused by hereditary factors ( according to the materials , his uncle suffered from a similar condition ) ... ”

NORP The general provisions on liability for damage read as follows :

“ CARDINAL . Damage inflicted on the person or property of an individual ... shall be reimbursed in full by the person who inflicted the damage ...

NORP The person who inflicted the damage shall be liable for it unless he proves that the damage was inflicted through no fault of his own ... ”

Complaints about the acts or decisions of a prosecutor may be lodged with a higher prosecutor ( LAW . Within DATE of receipt of a complaint , the prosecutor must examine it and give a response to the complainant ( Article CARDINAL ) .

If criminal proceedings are discontinued at the stage of the investigation , a victim or a civil party may lodge a separate civil claim unless the proceedings were discontinued on the ground that ( a ) the alleged offence had not been committed or ( b ) the suspect had not been involved in its commission ( LAW and LAW ( CARDINAL ) and CARDINAL § CARDINAL ( CARDINAL ) ) .


The first applicant is a NORP national , born in GPE in DATE , and the second applicant is his wife . The applicants live in GPE and are represented before the Court by PERSON , a lawyer practising in GPE .

In DATE the applicants purchased a take - away food shop in GPE and began trading as “ PERSON ’s Chippery ” . Most of their sales were of hot food , subject to value added tax ( “ LOC ) at the standard rate .

After a routine control visit in DATE , ORG officers ( “ ORG officers ” ) , who collect ORG on behalf of the Government , checked with several of the applicants’ suppliers and discovered that certain purchases had been understated . On DATE from DATE , ORG officers secretly kept watch on the premises from a window on the upper floor of a property which was obliquely across the road from the LOC and recorded details of customers entering and leaving and the number of “ packets ” or bags of food bought . They also observed and recorded all deliveries made .

On DATE the applicants were interviewed by CARDINAL ORG officers and DATE their till readings were analysed . In mid DATE the shop had been refitted with a new electronic till . On demand the till could produce reports which summarised the transactions entered onto it . The relevant grand total reading for takings from DATE to CARDINAL DATE was £ MONEY . This was compared with declared takings of £ MONEY .

On DATE the applicants admitted that they had been under - declaring takings and removing cash from the till since DATE . They also admitted to withholding purchase invoices from their accountants .

In DATE assessments were made by ORG in respect of under - declared tax between DATE and DATE . These were based on a DATE suppression rate derived from the till grand total for the period from DATE to DATE . The grand till total was assumed to be tax exclusive and , with an adjustment for CARDINAL - rated sales , ORG at PERCENT was added . £ MONEY was deducted to allow for keying errors and training and other non - transaction entries . The difference between the result and the declared takings for the same period was divided by DATE for which the shop was open , to obtain the DATE suppression rate . This rate was then applied to earlier periods with periodic reductions to reflect assumed price increases . The assessment figure reached was £ MONEY . The tribunal later found that the observation figures were used as supporting evidence only .

On DATE the applicants changed accountants and formally asked for the case to be reconsidered . The new accountants argued that the till memory was an unfair basis for assessing the tax as it included matters besides takings , and that it was impossible to ascertain the sums attributable to those matters . The figure put forward for tax due was £ MONEY .

The matter was reconsidered and ORG issued amended assessments on DATE for the sum of £ MONEY ; this took the figure of £ MONEY as inclusive of GPE and deducted £ MONEY ( as opposed to £ MONEY ) for keying and training errors . On DATE the applicants appealed against the reduced assessment of CARDINAL DATE ( the first appeal ) .

On DATE ORG formally issued the applicants with a notice of assessment of a penalty under LAW of LAW DATE for dishonest evasion of GPE for CARDINAL accounting periods DATE and DATE . The tax evaded was stated to be £ MONEY and the penalty was assessed at £ MONEY , PERCENT of the total , giving a reduction of PERCENT for co - operation under section CARDINAL ) of the LAW . The applicants appealed against this penalty on DATE ( the second appeal ) .

The NORP tribunal heard the consolidated appeals over DATE from DATE . The applicants were represented by counsel with a specialised LOC practice , who had , according to their own case :

“ an in depth familiarity with the theory of ORG law and extensive experience of taking NORP cases to both the tribunal and ORG . She was at the time of the domestic proceedings the author of a leading practitioners’ work on the subject ‘ The Encyclopaedia of VAT’ ” .

The applicants’ principal argument was that the review of the tax assessment in DATE ought to have been made according to the Commissioners’ best judgment ( using the “ best judgment ” test which applied to the assessments themselves ) . They argued that the till readings were an unreliable indicator of the takings and should not have been used as the basis of the assessment . Accordingly , the Commissioners could not have used their best judgment in assessing the tax due and the assessments were void . They further submitted that the penalty reduction of PERCENT for co - operation was too low in the circumstances .

In its judgment of DATE , the NORP tribunal held that nothing in either LAW DATE or LAW DATE required a review of an assessment to be made according to “ the best judgment ” test . Nevertheless , it found that , in the circumstances , the review had indeed been made according to the Commissioners’ best judgment .

During the course of proceedings an issue had been raised by the applicants as to the Commissioners’ compliance with certain directions for discovery . The NORP tribunal commented :

“ Although the discovery directions were not fully complied with , we are satisfied that eventually the [ applicants ] saw every existing document and were sufficiently informed of the contents of every other document which could possibly be considered as material to the applicants’ case and which was not privileged from production .

In our judgment the Commissioners’ failure to comply with the directions did not amount to wilful disobedience , and it was caused mainly by the GPE office ’s unfamiliarity with such directions and by the fact that the Commissioners took a relatively narrow view of the matters in issue in the case and of the documents which related to those matters , as opposed to the very wide view taken by the NORP advisers . ”

Although the applicants’ attack on the validity of the assessments failed as to quantum , the NORP tribunal held that £ MONEY should be deducted as the proper figure for keying and typing errors ( as opposed to £ MONEY ) , and it allowed an increase of PERCENT in takings for DATE following the shop ’s refurbishment period . The tax due was reduced to £ GPE , the penalty having been reassessed at PERCENT .

The applicants appealed to ORG . In its judgment of DATE , the court held that there was no point of law upon which ORG could intervene , since it was satisfied that the NORP tribunal had not misdirected itself in law in reaching the decision that ORG had exercised their best judgment in making the assessments .

The applicants further appealed to ORG , challenging the tribunal ’s decision that the Commissioners had exercised their best judgment . ORG , following the case of PERSON v ORG and Excise Comrs [ DATE ] STC CARDINAL , reiterated that the NORP tribunal ’s function is twofold : first to consider whether the commissioners have duly discharged their function and second to consider any further grounds put forward for reducing the assessment . Giving judgment on DATE , ORG held that it was impossible to find fault with the figures reached by the tribunal . ORG declined to decide the issue of whether the “ best judgment ” test applied to the review as well as the assessment , because it was not relevant to the case before it .

ORG criticised the approach of the appeal petition , Lord Justice PERSON noting at page CARDINAL § j :

“ What is not permitted , in my view , is a roving selection of evidence coupled with a general assertion that the tribunal ’s conclusion was against the weight of evidence and was therefore wrong . A failure to appreciate what is the correct approach accounts for much of the time and expense that was occasioned by this appeal to ORG . ”

Lord Justice PERSON commented again at page CARDINAL § d ,

“ The notice of appeal to ORG raised what were essentially factual issues stated as questions of law to the general effect that the tribunal had no right to make the findings which it did in the light of the evidence that it heard . ”

Lord Justice PERSON noted the failure to identify the issues in advance of , or even at the hearing , noting at page CARDINAL § c :

“ it must be said that there was a wholly indiscriminate and unnecessary attention to detail throughout . ”

On the issue of the length of proceedings , Lord Justice PERSON commented , at page CARDINAL § b :

“ I would say that the length of these proceedings was largely due to the failure to identify either at or before the beginning of the hearing , and to formulate , the issues that were raised . If this had been done the process of discovery would have been eased and the tribunal would have been better able to exercise control over the close examination of highly detailed evidence to which it was subjected . ”

The appeal was dismissed and leave to appeal to ORG was refused .

The applicants’ petition to ORG was refused on DATE . Bankruptcy proceedings , commenced by ORG , have been adjourned pending consideration of the ORG case before the ORG .

Relevant domestic law

The relevant part of paragraph CARDINAL of Schedule CARDINAL of the Value Added Tax Act DATE ( “ the DATE LAW ) , now LAW ) of ORG DATE ( “ the DATE LAW ) , provides as follows :

“ ( CARDINAL ) Where a person has failed to make any returns under this LAW or to keep any documents and afford the facilities necessary to verify such returns or where it appears to the Commissioners that such returns are incomplete or incorrect they may assess the amount of tax due from him to the best of their judgment and notify it to him . ”

A provision for appeals is made in section CARDINAL(CARDINAL ) of the CARDINAL LAW ( sections CARDINAL of the DATE Act ) :

“ CARDINAL ( CARDINAL ) . An appeal shall lie to a value added tax tribunal constituted in accordance with Schedule CARDINAL to this LAW against the decision of the Commissioners with respect to any of the following matters -

( m ) an assessment –

( i ) under sub - paragraph ( CARDINAL ) or ( CARDINAL ) of paragraph CARDINAL of Schedule CARDINAL in respect of a period for which the appellant has made a return under this Act ; or

( ii ) under sub - paragraph ( CARDINAL ) of that paragraph ,

or the amount of such assessment . ”

Under sub - sections ( CARDINALB ) and ( CARDINAL ) respectively there are powers for the tribunal to increase or reduce the amount of any such assessment .

Section CARDINAL subsection ( CARDINAL ) of LAW DATE provides that :

“ In any case where -

( a ) for the purpose of evading tax , a person does any act or omits to take any action , and

( b ) his conduct involves dishonesty ( whether or not it is such as to give rise to a criminal liability ) ;

he shall be liable , subject to subsections ( CARDINAL ) and ( CARDINAL ) below , to a penalty equal to the amount of tax evaded or , as the case may be , sought to be evaded , by his conduct . ”

Subsection ( CARDINAL ) provides :

“ If a person liable to a penalty under this section has co - operated with the Commissioner in the investigation of his true liability for tax … the Commissioner or , on appeal , a value added tax tribunal may reduce the penalty to an amount which is not CARDINAL what it would have been apart from this subsection ; and in determining the extent of any reduction under this subsection , the GPE or tribunal shall have regard to the extent of the co - operation which the person concerned has given to the Commissioners in their investigation . ”

“ Where any person is liable -

( a ) to a penalty under any of sections CARDINAL or CARDINAL above ,

the Commissioners may … assess the amount due by way of penalty … and notify it to him accordingly ; and the fact that any conduct giving rise to a penalty under any of sections CARDINAL to CARDINAL above may have ceased before an assessment is made under this section shall not affect the power of the commissioners to make such an assessment . ”


The applicant , PERSON , is a NORP national , who was born in DATE and lives in the village of LOC of LOC of the PERSON - on - Don Region . The respondent Government are represented by PERSON , ORG at ORG .

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

In DATE the applicant lodged a civil action against ORG ( hereafter DATE the Service ) , seeking payment of pension arrears and increase of his DATE pension .

On DATE ORG of GPE awarded the applicant MONEY ( ORG , MONEY ) in pension arrears , and DATE payments of CARDINAL RUR ( MONEY ) . The court also held that the applicant ’s DATE pension was to be adjusted in line with the minimum DATE wage .

On DATE the PERSON - on - Don Regional Court upheld the judgment .

Enforcement proceedings were instituted on DATE . However , the ORG continued to underpay the applicant DATE pension .

At the time the application was communicated , the applicant claimed that the judgment of DATE remained unenforced .

According to the Government , on DATE ORG credited RUR CARDINAL,CARDINAL to the applicant ’s account . Since DATE the applicant has received DATE pension of ORG .