The applicant is a NORP national , born in GPE in DATE . He is currently serving a life sentence in GPE . He is represented before the ORG by Mr PERSON , a solicitor practising in GPE , GPE .

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

On DATE the applicant was tried before a jury at ORG on a charge of murder . According to the prosecution case , on DATE the applicant deliberately mounted a pavement and drove his car at a pedestrian ( “ M. ” ) , striking him . PERSON died on DATE of his injuries .

The applicant maintained that PERSON had without provocation attacked and beaten him shortly before the incident . TIME , still dazed by the attack , he was driving his car along a street and saw PERSON throw or appear to throw a brick or similar missile at his vehicle . The applicant was forced to duck down with the result that he lost control of the car . When he regained control of the car he realised that he had hit something and that the car had been damaged . The windscreen and roof pillar ( which PERSON had hit ) were badly broken . He did not stop and drove to a garage where he left the car to be repaired . He was planning to collect the car the same day . Instead , as it turned out , it was collected by the police .

The applicant later informed his girlfriend that PERSON had gone to throw a brick at him and that he had ducked , swerved and hit PERSON telephoned the police and inquired about PERSON ’s condition and whether he would obtain bail . The prosecution made a formal admission that DATE after the incident the applicant ’s girlfriend had told a police officer that within a very short time after the incident the applicant had given her this account .

On DATE the applicant went to a police station unaccompanied by a solicitor . He was arrested , charged with attempted murder and cautioned . He told the police that PERSON had beaten him for no reason and had thrown bricks at him . He stated repeatedly that he was sorry for what had happened and inquired about M. ’s condition . The prosecution accepted that the applicant made this statement to the police . The applicant did not say however that he had ducked and that the collision had been an accident . Shortly afterwards a representative of his solicitors arrived at the police station and advised the applicant to remain silent during the police interviews on the ground that there had been inadequate disclosure of the police case against the applicant . The applicant maintains that during the time he spent in custody at the police station on CARDINAL and DATE he wished to answer police questions but accepted the firm advice of his representative to remain silent .

Before each interview the applicant was cautioned in the following terms :

“ You do not have to say anything but it may harm your defence if you do not mention when questioned something which you later rely on in court . Anything you say may be given in evidence . ”

On each occasion the applicant acknowledged that he understood the meaning of the caution . The applicant ’s solicitor was present throughout the interviews and had private consultations with him on a number of occasions .

The applicant was asked numerous questions about the incident on CARDINAL DATE and his involvement , if any , in it . He was asked , inter alia , about the conversation he had earlier in DATE with the police officer ; his acquaintance with PERSON and the fight they had had ; the evidence of the QUANTITY eyewitnesses ; whether the collision was an accident and the applicant ’s earlier explanations to his girlfriend .

The applicant refused to comment .

On DATE the police again interviewed the applicant under caution and in the presence of his solicitor . On this occasion the applicant answered fully the questions put to him . His account of the incident was that he believed PERSON to be throwing an object at his car , he ducked , lost control of the vehicle and hit PERSON by accident . The applicant stated that he then panicked and did not stop at the scene . At CARDINAL point in the first interview the applicant said that he did not know that he had hit PERSON until told by the police in that very interview . The applicant was also asked why he had swerved towards , rather than away from , a person whom he said was threatening him with a missile .

Since PERSON had died in the meantime the applicant ’s charge was changed to CARDINAL of murder .

At the trial CARDINAL eyewitnesses gave evidence for the prosecution . Both witnesses testified that they saw the applicant ’s car hit PERSON and drive off without hesitating or attempting to stop . CARDINAL of the witnesses stated that he saw the car smoothly mount the pavement to the full extent possible so that it was more on the pavement than on the road . It drove straight at LOC and hit him from behind as he walking along the pavement away from it . The car ’s speed was a QUANTITY but it may have speeded up a little before hitting PERSON witness had seen PERSON throwing a missile at the car .

A pathologist testified that the bruising to the deceased ’s calves indicated that he had been struck from behind . He also conceded that bruising was consistent with PERSON walking or “ turning in some way ” .

In his evidence to the court , the applicant stated that he had not stopped at the scene of the incident because he had been afraid of PERSON and because he , therefore , panicked . After the collision he went to see his girlfriend and told her that he had “ hit ” PERSON after he received a telephone call there saying that PERSON was in hospital . The applicant strongly disagreed with the pathologist ’s evidence . He insisted that PERSON had been facing the car throwing or appearing to throw a missile . The applicant confirmed the accuracy of the conversation he had with the police officer on DATE before the interview .

The applicant testified that he had not answered the questions put to him during the police interview on DATE because his solicitor had advised him not to .

The applicant waived legal professional privilege and his solicitor gave evidence . The solicitor testified that in private early on DATE the applicant had given the same account of an accident as he had given to his girlfriend . The solicitor , however , advised the applicant not to answer any questions because he was not satisfied with the extent of disclosure by the police . After further disclosure , he changed this advice and the applicant answered police questions .

The passenger who was in the applicant ’s car at the time of the incident testified on the applicant ’s behalf , supporting his account .

Following a ruling by the trial judge on the voir dire the prosecution in their closing speech to the jury was allowed to invite the jury to draw inferences from the applicant ’s silence when interviewed by the police on DATE . Counsel for the prosecution indicated that :

“ A proper inference to draw from his failure to say in the first formal interviews these things , is that this was not an accident at all , and that the idea of saying that it was an accident came to him later , and is designed to mislead you . ”

In his summing up to the jury the trial judge directed the jury that the law permitted it to draw such inferences as appeared proper from the applicant ’s failure to mention at the police interview on CARDINAL and DATE the facts he subsequently relied on in his defence . He stressed however that it was not obliged to hold the applicant ’s failure to reply to police questions at that interview against him and that his silence could not alone amount to proof of guilt . The judge continued :

“ Now , in deciding whether to draw inferences adverse to the accused ... you must have regard to a number of factors . For instance , the times of DATE when he was being interviewed ; his age and his experience of life ; his apparent mental capacity ; his state of health ... You have to bear in mind the legal advice he was given ...

... You must , as best you can , judge the condition and capacity of this particular [ applicant ] on the particular occasion of these first formal interviews , and take into account any evidence that is before you as to his qualities , knowledge and fears , and whatever advice he was receiving at the time . ”

The judge directed the jury that :

“ The weight of any adverse inference which you are invited to draw in this case , may well be diminished by the evidence of things said by the [ applicant ] before the process of interviewing began and before he received his solicitor ’s representative ’s advice . Such things will be factors for you to consider in deciding what inferences , if any , should be drawn from his failure to mention these particular matters in the first round of formal interviews . ”

The judge reminded the jury of what the applicant had related to his girlfriend on DATE of the incident and the similarity between that account and his subsequent account to the police on DATE . The jury was advised that this did not necessarily mean that that the account was true . The trial judge stressed that it was the same account which the applicant gave in due course to the police and at the trial . He explained that this factor undermined the prosecution ’s suggestion that the applicant had fabricated the account at a later stage and the invitation to the jury to draw an adverse inference from the applicant ’s silence during the first round of interviews .

The judge also addressed the fact that the applicant remained silent on the advice of his legal representative . He stated :

“ Now , you are entitled to draw inferences from his refusal to answer questions in the first CARDINAL interviews , but whether it is right to do so is for you to judge , and you may think ... that since the same account was apparently being given in detail before he was interviewed to [ the applicant ’s girlfriend ] and , it was being suggested ... before interview to [ a police officer ] and it was then given in detail on QUANTITY DATE to the police ... you may think ... that the reason why he did not say it to the police on DATE was that he was advised not to say anything by the solicitor . If that advice of the solicitor was bad advice ... you do not hold it against this [ applicant ] , and if you have any doubt about this question of whether it is right to hold the matter against the [ applicant ] , then if you have any doubt about it , you resolve any such doubt in his favour rather than against him . ”

On DATE the applicant , by a unanimous verdict , was found guilty of murder . The applicant was sentenced to life imprisonment .

On DATE the applicant ’s application for leave to appeal against his conviction was refused by a Single Judge . The Single Judge stated :

“ The [ trial judge ’s ] direction can not be faulted . The fact that you were advised not to say anything by your solicitor ( whether that advice was good or bad ) is not an automatic reason for forbidding a jury to draw any inference from your silence . It is merely one of the circumstances DATE a powerful one – for the jury to take into account . In fact when the [ trial judge ] came to direct the jury he practically told them not to hold your silence against you ; and in view of the fact that you had given your account of it being an accident to your solicitor and to [ your girlfriend ] before being interviewed , it is virtually inconceivable that they did . ”

The applicant renewed his application for leave to appeal before ORG . In the grounds of appeal reference was made , inter alia , to the fact that the judge had erred in allowing the jury to draw inferences from the applicant ’s silence at the police interviews on DATE . However before ORG the applicant ’s counsel stated that he could not support either that ground of appeal or indeed the other grounds prepared by the applicant ’s trial solicitor . Mr Justice PERSON in the Court of Appeal observed that the grounds of appeal prepared by the applicant ’s trial solicitor would not have been sufficient to ground a successful appeal and that he was not surprised that the Single Judge had refused leave to appeal . The applicant ’s counsel pleaded the application for leave to appeal on the ground that the jury were not directed on the issue of provocation . On DATE , following argument on that ground alone , ORG refused the applicant ’s application for leave to appeal .

Section CARDINAL of ORG LAW DATE provides that :

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

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

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

Where this subsection applies ...

( c ) the court , in determining whether there is a case to answer ; and

( d ) the court or jury , in determining whether the accused is guilty of the offence charged , may draw such inferences from the failure as appear proper .

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

Section CARDINAL ( CARDINAL ) and ( CARDINAL ) provides :

“ ( CARDINAL ) Where this subsection applies , the court shall , at the conclusion of the evidence for the prosecution , satisfy itself ( in the case of proceedings on indictment , in the presence of the jury ) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can , if he wishes , give evidence and that , if he chooses not to give evidence , or having been sworn , without good cause refuses to answer any question , it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal , without good cause , to answer any question .

( CARDINAL ) Where this subsection applies , the court or jury , in determining whether the accused is guilty of the offence charged , may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal , without good cause , to answer any question . ”

Section CARDINAL ( CARDINAL ) adds that :

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

Guidance as to the direction which the judge should give the jury in respect of section CARDINAL of ORG LAW DATE are provided by the ORG specimen directions and by the dicta of Lord PERSON in NORP v. PERSON ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) . The relevance of these dicta to directions under section CARDINAL of the same Act was confirmed by ORG in NORP v. ORG ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) .

The ORG guideline direction at the time of ORG consideration of the applicant ’s appeal provided that :

“ If he failed to mention [ a fact ] ... when he was questioned , decide whether in the circumstances which existed at the time , it was a fact which he could reasonably have been expected then to mention .

The law is that you may draw such inferences as appear proper from his failure to mention it at that time . You do not have to hold it against him . It is for you to decide whether it is proper to do so . Failure to mention such a fact at that time can not , on its own , prove guilt , but depending on the circumstances , you may hold that failure against him when deciding whether he is guilty , that is , take into account as some additional support for the prosecution ’s case . It is for you to decide whether it is fair to do so . ”

The dicta of Lord PERSON are as follows :

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

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

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

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

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

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

The current specimen direction for DATE , up - dated in DATE in the light of the judgments of ORG in NORP v. ORG ( [ DATE ] Criminal Appeal Reports CARDINAL ) and in the instant case , provides :

“ [ When arrested , and at the beginning of each interview ] this defendant was cautioned , he was told that he need not say anything , but that it may harm his defence if he did not mention something when questioned which he later relied on in court . Anything he did say may be given in evidence .

The defendant as part of his defence has relied upon [ ... ] ( here specify precisely the fact(s ) to which this direction applies ) . But [ the prosecution case is ] [ he admits ] that he did not mention this [ when he was questioned before being charged with the offence ] [ when he was charged with the offence ] [ when he was officially informed that he might be prosecuted for the offence ] .

The prosecution case is that in the circumstances , and having regard to the warning which he has been given , if this fact had been true , he could reasonably have been expected to mention it at that stage , and as he did not do so you may therefore conclude that [ it has since been invented / tailored to fit the prosecution case / he believed that it would not then stand up to scrutiny ] .

If you are sure that he did fail to mention [ ... ] when he was [ charged ] [ questioned ] [ informed ] , it is for you decide whether in the circumstances it was something which he could reasonably have been expected to mention at that time . If it was , the law is that you may draw such inferences as appear proper from his failure to do so .

Failure to mention [ ... ] can not , on its own , prove guilt . But , if you are sure that quite regardless of this failure , there is a case for him to meet , it is something which you are entitled to take into account when deciding whether his evidence about this matter is true , i.e. you may take it into account as some additional support for the prosecution ’s case . You are not bound to do so . It is for you to decide whether it is fair to do so .

[ There is evidence before you on the basis of which the defendant ’s advocate invites you not to hold it against him that he failed to mention this fact when he had the opportunity to do so . That evidence is [ ... ] . If you think this amounts to a reason why you should not hold the defendant ’s failure against him , do not do so . On the other hand , if it does not in your judgment provide an adequate explanation , and you are sure that the real reason for his failure to mention this fact was that he then had no innocent explanation to offer in relation to this aspect of the case , you may hold it against him . ] ”

In NORP v. ORG confirmed that legal advice is CARDINAL circumstance to be taken into account by the jury . ORG explained CARDINAL conditions that had to be met before section CARDINAL of the DATE could allow inferences to be drawn . As regards the sixth condition , Lord PERSON stated :

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

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

In NORP v. FAC ( [ DATE ] Criminal Law Reports CARDINAL ) ORG stressed the defendant ’s right to reveal to the jury not only the fact that he remained silent on legal advice but also his right to adduce evidence before the jury ( by way of oral evidence from the defendant himself and / or the solicitor who gave the advice ) about the contents of the advice , that is the reasons why he was so advised .

The approach in NORP v. PERSON was confirmed in the later cases of NORP v. PERSON ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) , NORP v. PERSON ( [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) , and PERSON judgment of DATE , unreported ) .

In NORP v. PERSON ( [ DATE ] ORG CARDINAL ) ORG held that where a trial judge decides , as a matter of law , that no jury could properly conclude that the requirements of section CARDINAL of the DATE have been satisfied and , therefore , it is not open to the jury to draw an adverse inference under section GPE ) , he must specifically direct the jury not to draw any inference . In NORP v. PERSON ( judgment of DATE : “ The NORP ” , DATE ) ORG ( per Lord Justice Auld ) stated :

“ Acceptance of the truth and accuracy of all or part of the prosecution evidence may or may not amount to sureness of guilt . Something more may be required , which may be provided by an adverse inference from silence if they think it proper to draw CARDINAL . What is plain is that it is not for the jury to repeat the threshold test of the Judge in ruling whether there is a case to answer on the prosecution evidence if accepted by them . The direction approved in GPE has a different object . It is to remind the jury that they can not convict on adverse inferences alone . It is to remind them that they must have evidence , which , in the sense of section CARDINAL inferences , may include defence evidence where called and which , when considered together with any such adverse inference as they think proper to draw , enables them to be sure both of the truth and accuracy of that evidence and , in consequence , guilt . ”

The Government submitted in the ORG v. the GPE case ( judgment of DATE , no . CARDINAL , to be published in LOC ) that the case of NORP v. PERSON is authority for the proposition that the jury must be satisfied that the prosecution have established a prima facie case of guilt before inferences may be drawn under LAW of LAW .

In NORP v. PERSON ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) ORG confirmed that if a defendant seeks to rely on reasons given in the course of an interview by a solicitor for advising his client to remain silent this would constitute a waiver of privilege even if the solicitor was not called to give evidence at the trial .

Section CARDINAL(CARDINAL ) of LAW DATE , as amended by LAW DATE , provides a single , composite ground of appeal against a criminal conviction . It states that ORG :

“ shall allow an appeal against conviction if it thinks that the conviction is unsafe ” .


Alvina Gyulumyan;Corneliu Bîrsan;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria

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

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

On DATE the applicant was arrested on suspicion of aggravated theft , which he had allegedly committed CARDINAL June CARDINAL .

On DATE the prosecutor of ORG committed the applicant and CARDINAL other individuals for trial on charges of aggravated theft . They were accused of having illegally transferred stocks from investment fund portfolios with the intention of using them on the stock market and then returning them to their real owner before their absence was noticed .

NORP Before ORG the applicant submitted that his actions could not be classified as theft , as at that time LAW and legal opinion excluded intangible goods , and thus stocks , from being the object of a theft . In the applicant ’s view , his actions could be interpreted as unauthorised stock trading under LAW ( Law no . CARDINAL ) or under LAW . During the proceedings , he requested that the evidence be considered under LAW ( Law no . MONEY ) , which in his view was a more lenient piece of legislation .

On DATE the ORG found the applicant guilty of aiding and abetting in theft ( complicitate la furt ) pursuant to ORG CARDINAL and CARDINAL of LAW and of money laundering pursuant to LAW no . MONEY ) . He was sentenced to CARDINAL years’ imprisonment and received a DATE restriction on his rights to vote and to hold a position of power ( LAW ( a ) and ( b ) of LAW as in force at the material time ) .

NORP In deciding that the crime committed should be classified as theft , ORG stated :

“ ... [ GPE are intangible goods [ bun incorporal ] of economic value ... and can be made subject to charge . Therefore , stocks may constitute the object of a theft ... The ‘ taking’ consisted of a virtual , electronic operation , a data transfer - that is to say , the stocks were moved from CARDINAL account to another .

The evidence shows that the purpose of this action was to acquire the stocks illegitimately , not just to use them . ”

ORG considered that , although the applicant had not been the person making the transfers , he had been behind the operation and was therefore an accomplice .

ORG excluded the applicability of the Security and LAW as the culprits’ actions could not be classified as broking for the purposes of that Act . It also excluded the applicability of LAW to the offence , as the culprits had not carried out any “ electronic commerce ” activities for the purposes of that Act .

The applicant appealed , alleging in particular that the offence could not be classified as theft . He requested that LAW and the Prevention and Punishment of Money Laundering Act be applied to his case .

In a decision given on DATE , ORG dismissed the applicant ’s arguments concerning the legal classification of the crime he had committed , endorsing the reasons given by the firstinstance court on that point . However , the court amended the firstinstance judgment , acquitting the applicant of money laundering . The sentence remained unchanged .

NORP The applicant lodged an appeal on points of law with ORG and ORG , relying on his previous arguments regarding the classification of the crime .

In a final decision of CARDINAL DATE ORG dismissed the appeal , for reasons similar to the ones given by the lower courts .

The applicant served his sentence and on DATE he was released and placed on probation .

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

“ ( CARDINAL ) The act of taking a movable asset from another person ’s possession or detainment , without the latter ’s consent , in order to make it one ’s own without right , shall be punishable by CARDINAL to CARDINAL years’ imprisonment .

( CARDINAL ) ORG assets shall also mean any form of energy that has economic value , as well as documents . ”

“ ( CARDINAL ) Theft committed in the following circumstances :

( a ) by CARDINAL or more persons together ;

shall be punishable by DATE imprisonment . ”

The relevant provision of the Prevention and Punishment of Money Laundering Act ( which entered into force on DATE ) reads as follows :

“ ( CARDINAL ) The following shall be considered money laundering and shall be punishable by CARDINAL to twelve years’ imprisonment :

( a ) ... the exchange or transfer of assets , knowing that they are derived from criminal activity ... offences committed through computers ; offences committed through credit cards with a view to concealing or disguising their illicit origin , and assistance to persons who are involved in such activities or under suspicion of trying to escape the legal consequences of their actions ;

( c ) NORP the acquisition , possession or use of such property , knowing that it derives from one of the offences under paragraph CARDINAL(a ) . ”

On DATE , a new version of the Prevention and Punishment of Money Laundering Act entered into force ( Law no . CARDINAL/CARDINAL ) , which contains a similar prohibition under its Article CARDINAL .

Article CARDINAL of LAW ( which entered into force on DATE ) prohibits any unauthorised operations in data - processing systems .

An example of legal opinion at the material time on what constitutes the object of a theft is as follows :

“ Theft can only concern tangible assets ( bunuri corporale ) ... LAW includes documents in the sphere of movable assets ... it is irrelevant whether the document has an intrinsic value ( for example a historical document ) or whether it only carries an economic value that it bears and with which it is inextricably linked ( for example a share ) . The latter case is an exception from the rule that the object of a theft must be a tangible asset , as what is taken in this case is an intangible asset . ” ( PERSON , PERSON , PERSON , GPE penal , PERSON . PERSON , DATE , p. CARDINAL )

At the ORG ’s request , the ORG submitted information on how similar cases had been treated by the domestic courts . The only court which had dealt with similar cases to that of the applicant was ORG , which applied LAW to the actions carried out . That court gave a decision on DATE , in which it convicted the accused of a similar theft .

ORG ( ETS no . CARDINAL ) was opened for signature on DATE in GPE . It entered into force on DATE . The ORG was ratified by GPE on DATE and became binding on the respondent ORG on DATE . Article CARDINAL of the Convention on Cybercrime reads as follows :

“ Each ORG shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law , when committed intentionally and without right , the input , alteration , deletion , or suppression of computer data , resulting in inauthentic data with the intent that it be considered or acted upon for legal purposes as if it were authentic , regardless whether or not the data is directly readable and intelligible . A ORG may require an intent to defraud , or similar dishonest intent , before criminal liability attaches . ”


The applicant , Mr PERSON , is a GPE national , who was born in DATE and is currently serving a sentence of imprisonment in FAC . He is represented before ORG and PERSON , solicitors practising in GPE .

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

On DATE , PERSON died as a result of severe burns sustained during an incident in a street on TIME DATE , when he was sprayed with a form of accelerant and the back of his clothing set alight .

As a result of their investigation , the police arrested and charged in GPE CARDINAL men , the applicant , PERSON and PERSON . A fourth man implicated in the incident , PERSON , had gone to GPE . He was arrested and tried in GPE and convicted of manslaughter .

The trial in GPE took place in DATE . The prosecution case was that PERSON and PERSON had set ORG on fire while the applicant assisted by acting , inter alia , as lookout and that PERSON had committed subsequent acts intended to pervert the course of justice ( namely , by covering up the evidence of the incident ) . In the case of PERSON , the prosecution relied on the evidence of witnesses who said that he confessed his involvement to them ; on covert tape recordings of conversations between him and his co - accused ; and on the lies which he had told the police . As regarded the applicant , the prosecution relied on his own account that he had watched PERSON and PERSON carry out the attack , making no attempt to leave and doing nothing to prevent what happened . Afterwards he had taken ORG personal stereo . In his case too , the prosecution relied on the covert recordings and the lies he told .

The applicant had a history of mental illness and delusions . The doctor in charge of his treatment for DATE stated that the applicant suffered from a longstanding personality disorder which at times of stress could be prone to paranoid states of mind . Expert opinion was obtained by the defence at the beginning of the trial as to whether he was fit to stand trial . In a report dated DATE , PERSON stated :

“ ... [ the applicant ] is fit to plead and stand trial . He gave a clear and consistent account of his version of events . It coincides with the known facts and I consider him well enough at the present time to instruct his solicitors and to enter an appropriate plea . He is also able to engage in court procedure . The only issue that is less certain is his ability to give evidence on his own behalf . ”

During the trial , on DATE , PERSON saw the applicant again . He took the view that the applicant had improved and was capable of giving evidence .

However , the applicant did not give evidence during the trial and counsel made no submission to the judge that he should exercise his powers under section CARDINAL(CARDINAL)(b ) of ORG LAW DATE not to draw inferences from his silence . PERSON gave evidence for the defence to the effect that the applicant ’s personality disorder would have inhibited his ability to walk away from the incident and made it unlikely that he would have taken any part in it .

In his summing - up , the judge directed the jury as to the circumstances in which they might draw an inference from the applicant ’s failure to give evidence if they thought appropriate , warning inter alia :

“ Each [ defendant ] is entitled to remain silent and to require the prosecution to prove its case , and you must not assume that he is guilty just because he has not given evidence , because failure to give evidence can not on its own prove guilt .

If , for instance , you are not sure that the prosecution has made out any case against the defendant , his failure to give evidence will add nothing to the prosecution case ... ”

On DATE , the applicant was acquitted of murder and convicted of manslaughter and a count of perverting the course of justice . He was sentenced to CARDINAL years’ imprisonment for manslaughter and DATE on the second count . PERSON was convicted of murder .

The applicant was refused permission to appeal by a single judge of ORG . He renewed his application . At a hearing held on DATE concerning the applications of himself and PERSON , the applicant ’s counsel informed the court that in light of instructions received from the applicant he no longer felt able to continue to represent him . The court adjourned consideration of the applicant ’s applications and directed that the prison authority should obtain a medical report on his current psychiatric condition and whether he was able to instruct lawyers .

An examination took place in DATE and indications were given that the applicant was capable of giving instructions . The court adjourned the matter further in DATE to give the applicant ’s new counsel time to prepare . The applicant changed his solicitors and counsel on a number of occasions . The case finally came for hearing on DATE .

As regarded the applicant ’s argument that new evidence should be admitted concerning his mental state at the time of trial showing that the trial judge should not have allowed inferences to be drawn from his failure to give evidence , Lord Justice PERSON said :

“ Put shortly , the contention before us is that it was sufficiently clear that it was undesirable for [ the applicant ] to give evidence for the judge to have been asked to give a ruling under section CARDINAL(CARDINAL)(b ) , in the hope that the otherwise damaging direction to the jury as to [ the applicant ’s ] failure to give evidence would be withheld .

Throughout the trial there are various notes [ by the solicitors ] about [ the applicant ] complaining of various events and engaging in inappropriate discussion and making inappropriate statements , including fears about aliens and unidentified flying objects . Also he expressed concern to his solicitor ’s representative about sitting in court .

On DATE ... the applicant was seen again by PERSON ... the upshot of that encounter appears to have been that the doctor thought that the applicant had improved , and was capable of giving evidence .

There were a number of disturbing observations by [ the applicant ] after that but on DATE there was a conference between PERSON and the lawyers ... when PERSON PERSON appears to have said that , in light of his most recent examination ... he effectively withdrew what he had said in the report of CARDINALst September CARDINAL .

... [ PERSON ] says this :

‘ On DATE I am much less convinced that he was unable to give evidence at all and in fact , on balance , I have concluded that he probably could , although his ability to do so credibly and persuasively was almost impossible to predict . Bearing in mind fluctuations one would have expected in the context underlying mental health problems . It is possible that he could have done so at certain times and other times he would have been less able to do so . ... ’

He added that his agreement that [ the applicant ] was able to give evidence was ‘ couched with a certain degree of ORG and he emphasised the need for [ the applicant ] to have regular breaks during the course of the trial .

We do not know , as we have said , what decision was then taken or the basis upon which it was taken . But the position seems to us quite clear that advice had been given to those representing [ the applicant ] that he could , in certain circumstances , and subject to certain conditions , give evidence . It would therefore have been extremely difficult for those representing [ the applicant ] properly to make any submission to the judge that he should exercise his powers under section CARDINAL(CARDINAL)(b ) .

However broadly one interprets that section , it is clear and accepted that a decision of the judge must be based upon evidential material . The evidence that would have been given to the judge , so far as one can work it out , would have been the evidence of PERSON that he has sketched out in his helpful recent report . If that evidence had been given to [ the trial judge ] it seems extremely difficult to see how he could have said that it met the requirements of section CARDINAL(CARDINAL)(b ) .

It is argued before us that this should be regarded as a fresh evidence case ... and therefore the fresh evidence should be , first of all , the observations of the solicitors ... and secondly the recent report of PERSON . The difficulty about that one would have expected the observations made by the solicitors to have been drawn to PERSON attention , and certainly drawn to the attention of leading counsel . Although one can not speculate , it may well be precisely because of that that PERSON was asked to intervene again on DATE . But be that as it may , it can not be material that can be used to offset the professional view of the doctor . The professional view of the doctor was that [ the applicant ] could , with some caution , give evidence . In our judgment therefore this matter does not fall within section CARDINAL ) at all . It is a case where a decision was taken by leading counsel at trial , who had effectively all the information now before the court .

Of course , as [ counsel for the applicant ] has argued and argued powerfully , this ORG will not always exclude cogent and relevant new evidence just because it was available at the original trial and not made use of . But there are limits to that latitude . CARDINAL of them is where it is apparent on all material that the advisors were perfectly seized of the factual position and made a decision , rightly or wrongly , that they could not follow a particular course . Everything that we have seen about how this case was conducted suggests that both the solicitors and counsel representing [ the applicant ] were giving the matter the most anxious and urgent consideration , down to , as we have said , bringing in PERSON for a further report . It is really impossible , at this stage , to suggest that the matter should be re - opened . Indeed , as we have said , even if it were to be re - opened it seems to us that it would founder on the evidence that we now have from PERSON , which is consistent with the advice that he is reported to have given on DATE and thereafter ...

We have gone into this matter in some considerable detail because it has been carefully and strongly pressed by [ counsel for the applicant ] . We are well aware of the concerns that are felt about the impact of [ the applicant ’s ] mental state upon this trial . But there is really nothing in the matter that has been put before us to suggest that it would be justified to re - open that issue , which we are satisfied was carefully considered on the basis of full information at the time of the trial , and which it should be noted played no part in the grounds of appeal that were originally put before this Court ... ”

ORG rejected the applicant ’s other grounds of appeal but on his appeal against sentence reduced the sentence on manslaughter from DATE .

Section CARDINAL(CARDINAL)-(CARDINAL ) of ORG LAW DATE ( LAW ) provide as relevant :

“ ( CARDINAL ) At the trial of any person who has attained DATE for an offence , subsections ( CARDINAL ) and ( CARDINAL ) below apply unless-

( a ) the accused ’s guilt is not in issue ; or

( b ) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence ;

but subsection ( CARDINAL ) below does not apply if , at the conclusion of the evidence for the prosecution , his legal representative informs the court that the accused will give evidence or , where he is unrepresented , the court ascertains from him that he will give evidence .

( CARDINAL ) Where this subsection applies , the court shall , at the conclusion of the evidence for the prosecution , satisfy itself ( in the case of proceedings on indictment , in the presence of the jury ) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can , if he wishes , give evidence and that , if he chooses not to give evidence , or having been sworn , without good cause refuses to answer any question , it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal , without good cause , to answer any question .

( CARDINAL ) Where this subsection applies , the court or jury , in determining whether the accused is guilty of the offence charged , may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal , without good cause , to answer any question . ”


The first applicant , PERSON , and the second applicant , GPE Muratovic , are ethnic NORP who were born in DATE and DATE , respectively , and live in Randers , GPE . They are represented before the ORG by Mr PERSON , a lawyer practising in GPE .

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

The applicants and their CARDINAL children entered GPE on DATE without any travel / identification papers and requested asylum in that while they were living in the village GPE in GPE in DATE NORP men subjected them to a violent assault which included rape of the women . The applicants succeeded in fleeing to GPE and thereon to GPE .

On DATE ORG ) refused to grant the applicants asylum , a decision which was upheld on appeal by ORG ( PERSON ) on DATE . Both instances found it established that the applicants and their children had been subjected to serious violence in DATE , but found that the assault should be seen , not so much as a result of the applicants being NORP , but in connection with the situation at the relevant time in GPE . In this respect it was recalled that under the mandate of ORG , the ORG - led international ORG , ORG , being responsible for establishing and maintaining security in GPE , on DATE intervened in the conflict between NORP and NORP forces , and that subsequent thereto , for a short while , NORP armed groups took over specific areas .

ORG stated in addition , that presently the general security situation as to NORP in GPE had improved according to inter alia ORG ’s position paper of DATE , background no . CARDINAL , and ORG ’s and ORG ’s report on ethnic minorities , background no . CARDINAL .

Finally , although finding it established that the applicants were affected by their experiences to the detriment of their mental health , ORG did not find that a concrete danger existed that they would be subjected to assaults if returned . They were ordered to leave the country immediately .

On DATE the applicants applied ORG ( PERSON for PERSON , ORG ) for a residence permit either on humanitarian grounds pursuant to section CARDINAL b of LAW ( PERSON ) or in the alternative due to extraordinary circumstances pursuant to section CARDINAL c of LAW . In support of their application they submitted statements by doctors from which it appeared inter alia that the first applicant had been ill for DATE , notably suffering from chronic headache ; that he was suffering from ORG ( PTSD ) ; that he had received treatment by a psychiatrist and a psychologist , and that he was taking antidepressive medication . Moreover , according to a statement of DATE by a psychologist , the first applicant had expressed thoughts of suicide in case he would be returned to GPE . With regard to the second applicant it appeared inter alia that she had received treatment by a psychologist and that she was taking tranquillizers .

By decision of DATE ORG refused to grant the applicants a residence permit pursuant to section CARDINAL b of LAW since they did not suffer from a very serious physical or mental illness , which could justify the granting of a residence permit on humanitarian grounds . Moreover , the Ministry noted that in general the fact that a person had expressed contemplation of suicide was insufficient to fulfil the criteria under LAW b of LAW . In addition , it had not been established that the first applicant was suffering from a mental illness , which according to a concrete medical assessment entailed a significant risk that he would commit suicide . The applicants were ordered to leave the country without delay .

By decision of DATE ORG refused to grant the applicants a residence permit pursuant to LAW CARDINAL c of LAW finding that no extraordinary circumstances existed . The applicants did not appeal against the decision to ORG .

LAW and GPE in GPE .

According to information provided by the Government , in DATE GPE evacuated a total of CARDINAL GPE , which were selected together with ORG . The applicants in the present case were not among those evacuees . They entered GPE themselves in DATE . A “ FAC ” of DATE created the legal basis at domestic level for receiving displaced persons from GPE with a need for temporary protection . The LAW was repealed in DATE . At the same time a provision was inserted in LAW introducing the possibility of granting a residence permit to distressed persons from GPE assumed to need temporary protection ( now section CARDINAL e ( CARDINAL ) ) . A precondition for obtaining a residence permit under this provision is that the person in question must be assumed to need temporary protection in GPE and formerly held a residence permit pursuant to the “ GPE Emergency Act ” or has been registered as an asylum - seeker before DATE . The assessment whether applicants are eligible for a residence permit under section CARDINAL e ( CARDINAL ) of LAW is made on the basis of ORG recommendations . Thus , in accordance with the ORG recommendations it is possible to issue residence permits under LAW ) to persons - who formerly held a residence permit under LAW or who applied for asylum before DATE – and who can be referred to CARDINAL of the categories of “ chronically ill persons whose conditions requires specialised medical intervention of a type not yet available in GPE ” ; “ Persons with severe and chronic mental illness whose conditions requires specialised medical intervention of a type not yet available in GPE ” ; “ Severely handicapped persons ( including their caregivers ) whose wellbeing depends on a specialised support system not yet available in GPE ” ; “ Unaccompanied elderly persons who have no relatives or any other form of societal support in GPE ” ; and “ Separated children without relatives or caregivers in GPE , and for whom it is found not to be in the best interest to return to GPE ” . AppCARDINALications for a residence permit under section CARDINAL e ( CARDINAL ) of LAW are determined in the first instance by ORG and in the second instance by ORG .

The applicants in the present case are not covered by section CARDINAL CARDINAL ( e ) of LAW because they never held a residence permit under the “ GPE Emergency Act ” and they entered GPE after DATE . However - like asylum - seekers from other countries – they had the possibility of applying for asylum pursuant to section CARDINAL of LAW , for a residence permit on humanitarian grounds pursuant to section CARDINAL b of the LAW , or for a residence permit due to extraordinary circumstances pursuant to section CARDINAL c of the Act .

Asylum is granted to aliens , who satisfy the conditions of LAW . Applications for asylum are determined in the first instance by ORG and in the second instance by ORG , which is an independent quasi - judicial body that is not subject to any instructions from ORG . Thus , ORG has no authority to decide applications for asylum . ORG are included in the background material of the asylum authorities in connection with the determination of concrete asylum cases .

The granting of a residence permit on humanitarian grounds pursuant to section CARDINAL b of the LAW is a discretionary decision , which according to practice may be granted to persons who do not satisfy the conditions of LAW , but who is suffering from very severe physical or mental illness ( unless the possibility of receiving the requisite medical assistance exists in the applicant ’s country of origin ) . Applications for a residence permit on humanitarian grounds cf . section CARDINAL b ( CARDINAL ) are determined by ORG .

A residence permit may be granted pursuant to section CARDINAL c of LAW on a discretionary basis , if due to extraordinary circumstances , there are strong grounds for granting such . AppCARDINALications for a residence permit under this section of the LAW are determined in the first instance by ORG and in the second instance by ORG .

According to LAW an alien whose application for a residence permit for GPE has been refused must leave the country . Furthermore , under LAW it is possible to provide financial assistance if the person in question returns without undue delay voluntary .

In connection with the forced return of aliens from GPE , UNMIK ( ORG in GPE ) is the relevant partner . In every case there is a close dialogue between the NORP National Commissioner of Police and UNMIK . Firstly the NORP National Commissioner of Police notifies UNMIK about the return to GPE of GPE whose applications for a residence permit in GPE have been refused . Such notifications state the time of the individual ’s departure from GPE and entry into GPE and inform of decisions made by the NORP authorities and the individual ’s personal situation , including his or her home town in GPE , the languages mastered by the individual and where his or her family members are staying . It also appears from the notification if the individual has been expelled due to crime . The notifications also state particulars on the individual ’s health status . This notification procedure was first established at a meeting held in GPE from CARDINAL to DATE between officials of ORG , ORG and UNMIK . The notification procedure was confirmed and expanded at a meeting in GPE on DATE between a delegation of high officials from the immigration authorities and UNMIK , who agreed that UNMIK will be provided with extended information , especially concerning the mental status of GPE who are non - voluntarily sent back to GPE in order to support UNMIK in its efforts to solve its task . Such information will be available to UNMIK by offering the GPE in question a voluntary medical status report prior to the return to GPE . ORG Commissioner of Police has presented to UNMIK a number of PERSON whose applications for a residence permit in GPE have been refused for which reason they have had to leave GPE . In some cases PERSON objected to the return of the persons in question . In such situations the NORP National Commissioner of Police has suspended the return until further notice .

In the present case , the NORP National Commissioner of Police has not yet contacted UNMIK because the forced return of the applicants has not been planned yet . Normally a forced return takes quite some time , not CARDINAL or three months .

Relevant international materials

With regard to the current security situation in GPE , the following statements/ findings are of particular relevance :

The Secretary General on ORG in GPE stated in his report of DATE covering the activities of UNMIK and the developments in GPE , GPE , and GPE among other things that given the continued violence , harassment and discrimination faced by minorities , achieving sustainable minority returns to GPE was difficult , time - consuming and resource - intensive ;

In his report of DATE he stated inter alia that incidents of violence and crimes against minorities continued to be a cause for concern within GPE ;

In his report of DATE he stated inter alia that despite setbacks resulting from recent violent incidents involving GPE NORP victims , the overall rate of returns continued to accelerate during the reporting period . Over CARDINAL displaced persons had returned so far that year to areas where they were a minority ( including CARDINAL ORG , CARDINAL ORG NORP , CARDINAL NORP , CARDINAL PERSON and CARDINAL GPE NORP ) . Funding expected from several major donors had been provided in GPE and work on a number of returns projects had begun in earnest , including the return of GPE NORP to GPE ( NORP region ) and LOC ( NORP region ) , and ORG / NORP returns to PERSON ( GPE ) and GPE town . The heightened level of security within ORG and other minority communities had not resulted in the cancelling of any returns project , but it had led to numerous postponements of returns activities , at a stage in DATE where such delays may mean that returns are not possible until DATE . It was also considered likely to have a dampening effect on ORG return .

The Tenth Assessment of the Situation of Ethnic Minorities in GPE of DATE , conducted jointly by ORG and the ORG , stated that minorities continue to face varying degrees of harassment , intimidation and provocation , as well as limited freedom of movement , and that considering the overall situation described in the report , the changes noted during the reporting period were not yet fundamental enough to conclude that conditions would exist for large scale return of ethnic minorities in the near future , underscoring the continuing need for international protection for members of ethnic communities , in particular GPE NORP , GPE and NORP ;

The UNHCR Position Paper on the continued Protection Needs of individuals from GPE of DATE stated that especially GPE NORP and GPE , but also GPE and NORP should continue to benefit from international protection in countries of asylum . ORG stressed that return of these minorities should take place on a strictly voluntary basis and be based on fully informed individual decisions . Any such voluntary return movements should be properly coordinated , and re - integration should be supported through assistance to ensure sustainability . ORG , GPE and NORP individuals or families should not be forced or induced to return to GPE .

The First Vice - President of ORG on LAW , recommended in his mission report of DATE “ ORG and GPE ” for ORG , inter alia that GPE asylum seeker / returnees ( from LOC ) , who fled GPE , should not be returned to GPE unless they wish to return and they are advised by PERSON and UNCHR that it is safe for them personally to return to their homes , and

In its report of DATE and GPE ( GPE ) “ Prisoners in our own homes ” : ORG concerns for the human rights of minorities in GPE - Amnesty International urged inter alia host countries not to end international protection for all minority refugees from GPE and ensure that refugees still in need of protection were not subject in any way to pressure or inducement to “ voluntarily return ” . ORG considered that the forcible return of members of minority groups to GPE would be a violation of the principle of non - refoulement and place minority individuals at risk .

It follows from a “ Memorandum of Understanding ” between the Federal Minister of the Interior of GPE and GPE the Secretary - General of ORG for GPE of DATE that CARDINAL members of ethnic minorities from GPE are required to leave GPE . It was agreed that certain members of specific ethnic minority groups were no longer in need of international protection and could therefore be returned to GPE , as from DATE . In DATE GPE would return CARDINAL persons . This figure would include members of the NORP , NORP , PERSON and GPE minority communities , as well as GPE and NORP minorities . As to the latter CARDINAL groups of minorities , they would be returned depending on the results of an individualised screening process performed by UNMIK . Members of the NORP and GPE communities would not be returned in DATE .


The applicant is an NORP national , born in DATE and living in GPE . He is a tax consultant by profession . He is represented before the Court by Mr. PERSON , a lawyer practising in GPE .

A.

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

On DATE the applicant drove on the ORG motorway in GPE from GPE in the direction of the FAC .

On DATE ORG Bezirkshauptmannschaft ) issued a penal order ( PERSON ) against the applicant . It found the applicant guilty of having committed the following CARDINAL speeding offences contrary to LAW ( Straßenverkehrsordnung ) on DATE on the ORG motorway :

CARDINAL ) The applicant had driven in excess of the maximum speed permitted on the ORG motorway , namely at QUANTITY , during TIME at road QUANTITY CARDINAL,CARDINAL in the district of ORG . This constituted an offence under LAW ( a ) of LAW , in conjunction with LAW Federal Minister for ORG ( Verordnung des Bundesministers für öffentliche ORG , ORG CARDINAL/CARDINAL ) .

CARDINAL ) The applicant had also exceeded the speed limit of QUANTITY / h imposed by a road sign ( Section CARDINAL sub - section A ( CARDINAL a ) of LAW ) by QUANTITY / h at TIME at road QUANTITY in the district of Zams . This constituted an offence under LAW sub - section A ( CARDINAL a ) of LAW .

The applicant was fined ATS CARDINAL and ATS CARDINAL respectively , with imprisonment of DATE and DATE in default . He did not appeal against the penal order and paid the fine imposed on him .

On DATE ORG issued a penal order against the applicant which related to the following CARDINAL offences of speeding committed on DATE on the ORG motorway :

CARDINAL ) The applicant had driven in excess of the maximum speed permitted on the ORG motorway , namely at QUANTITY , during TIME at road QUANTITY CARDINAL,CARDINAL in the district of PERSON . This constituted an offence under LAW ( a ) of LAW , in conjunction with LAW Federal Minister for ORG .

CARDINAL ) The applicant had also exceeded the speed limit of QUANTITY / h imposed by a road sign ( Section CARDINAL sub - section A ( CARDINAL a ) of LAW ) by QUANTITY / h at TIME at road QUANTITY CARDINAL,CARDINAL in the district of LOC . This constituted an offence under LAW sub - section A ( CARDINAL a ) of LAW .

CARDINAL ) The applicant had driven in excess of the maximum speed permitted on the ORG motorway , namely at QUANTITY , during TIME at road FAC in the district of GPE . This act constituted an offence under LAW ( a ) of LAW , in conjunction with LAW Federal Minister for ORG .

CARDINAL ) The applicant had exceeded the speed limit of QUANTITY / h imposed by a road sign ( Section CARDINAL sub - section A ( CARDINAL a ) of LAW ) by QUANTITY / h at TIME at road QUANTITY in the district of ORG . This constituted an offence under LAW sub - section A ( CARDINAL a ) of LAW .

CARDINAL ) The applicant had driven in excess of the maximum speed permitted on the ORG motorway , namely at QUANTITY , during TIME at road QUANTITY CARDINAL,CARDINAL in the district of QUANTITY . This constituted an offence under LAW ( a ) of LAW , in conjunction with LAW Federal Minister for ORG .

CARDINAL ) The applicant had exceeded the speed limit of QUANTITY / h imposed by a road sign ( Section CARDINAL sub - section A ( CARDINAL a ) of LAW ) by QUANTITY / h at TIME at road QUANTITY in the district of QUANTITY . This act constituted an offence under LAW sub - section A ( CARDINAL a ) of LAW .

The applicant was fined ATS DATE , CARDINAL and CARDINAL respectively , with imprisonment of DATE , DATE , DATE , DATE , DATE and TIME in default . Thus , the fine imposed amounted to ORG CARDINAL or PERCENT CARDINAL days’ imprisonment in default .

On DATE the applicant appealed . He submitted that he had already been fined for speeding on DATE on the ORG motorway by ORG and that it was unfair to impose further fines on him .

On DATE ORG for the Tyrol ( Unabhängiger Verwaltungssenat ) dismissed the applicant ’s appeal .

On DATE the applicant filed a complaint with ORG ) , in which he submitted that his conviction for CARDINAL offences of speeding in the course of CARDINAL journey was an exaggerated formalism and inherently unfair . He submitted , in particular , that LAW of LAW ( GPE ) , which provided that in CARDINAL penal order a penalty for each single offence be imposed , should be annulled ( see “ Relevant Domestic Law ” below ) .

On DATE ORG refused to deal with the applicant ’s complaint for lack of prospects of success . This decision was served on the applicant ’s lawyer on DATE . The applicant did not lodge a complaint with ORG ( Verwaltungsgerichthof ) .

B. Relevant domestic law

Section CARDINAL sub - section A ( CARDINAL a ) of LAW ( Straßenverkehrsordnung ) prohibits driving in excess of the speed limit indicated on a road sign .

Section CARDINAL of the Ordinance of the Federal Minister for Public Economy and Traffic ( Verordnung des Bundesministers für öffentliche ORG , ORG CARDINAL/CARDINAL ) prohibits driving in excess of the maximum speed limit permitted on ORG at TIME . This ordinance is based on FAC .

Under section CARDINAL ( CARDINAL ) ( a ) of LAW , breaches of its provisions and its subsidiary ordinances are punishable with a fine of up to ATS CARDINAL.CARDINAL , with imprisonment of DATE in default of payment .

Section CARDINAL of LAW ( GPE ) , insofar as relevant , reads as follows :

“ ( CARDINAL ) If somebody has committed several administrative offences by performing different acts or if CARDINAL single act constitutes at the same time different offences which do not exclude each other , a penalty has to be imposed for every single offence . ”


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

On DATE the applicant sued her former employer , a private company , for reinstatement , payment of wage arrears and compensation for non - pecuniary damage .

On DATE the ORG dismissed the action . On DATE the applicant lodged before ORG her statement of appeal against the judgment .

ORG accepted the statement of appeal and fixed a hearing for DATE . According to the Government , on DATE ORG summonsed the parties for the appeal hearing . The Government provided the ORG with a copy of the covering letter of CARDINAL DATE sent by ORG to ORG and the parties , including the applicant . The letter indicated that ORG had sent the case - file to ORG and that the appeal hearing had been fixed for DATE , at TIME The Government also submitted copies of receipts issued by the local post office on DATE showing that it had accepted for delivery CARDINAL registered letters from ORG .

On DATE ORG , in the presence of the defendant 's representative , upheld the judgment of DATE . The applicant did not attend the hearing . According to her , in the TIME of DATE she discovered the letter with summonses to the hearing of CARDINAL DATE in her post box .

On DATE the applicant sued her former employer for provision of free housing . On DATE the ORG dismissed the action . The judgment was upheld on appeal and became final on DATE

In DATE the applicant again sued her former employer for provision of free housing . On DATE ORG , in the final instance , disallowed the action because the same dispute between the same parties had been already determined by the final judgment of DATE .

In DATE the applicant requested the Elektrostal ORG to quash the judgment of DATE , re - open the proceedings due to newly - discovered evidence and re - examine her action . On DATE ORG , in the final instance , dismissed request because there was no newly - discovered evidence in the case .

The RSFSR Code of Civil Procedure of CARDINAL DATE ( in force at the material time ) :

“ Parties and their representatives are to be notified with court summonses of a date and place of a court hearing or certain procedural actions ...

A summons is to be served on parties and their representatives in such a way that they would have enough time to appear at a hearing and prepare their case ...

Where necessary , parties and their representatives ... may be summonsed by a phone call or a telegram . ”

“ Summonses are to be sent by mail or by courier . A time when a summons was served on an addressee is to be recorded on the summons and its copy which is to be returned to a court ... ”

“ A summons is to be served on a person against his / her signature made on a copy of the summons which is to be returned to a court ... ”

“ A civil case is to be heard in a court session with mandatory notification to all parties to the case ... ”

“ If a party to the case fails to appear and there is no evidence that the party was duly summonsed , the hearing is to be adjourned ... ”


Violation of Article 6 - Right to a fair trial

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

The applicant was born in DATE and lives in GPE .

The applicant lived in a long - term relationship ( cohabitation ) with ORG , who died in DATE . On DATE she lodged a civil action with ORG against his sons , NORP and NORP , for recognition of her ownership rights to the property she had possessed and maintained during her cohabitation with J.L.

At its first hearing on CARDINAL DATE the court heard the parties .

On DATE ORG stayed the proceedings , as the applicant ’s counsel had failed to submit some important documents concerning the ownership of the disputed property . The applicant appealed and on CARDINAL DATE ORG quashed that decision .

Subsequent hearings in the case were held on DATE and CARDINAL DATE . The court questioned the applicant and CARDINAL witnesses . Further , it asked counsel to define precisely the subject matter of the claim .

The hearing scheduled for CARDINAL DATE was postponed due to the applicant ’s non - appearance .

The hearing of DATE was adjourned at the parties’ request , in connection with their wish to reach a friendly settlement .

On DATE and DATE the court heard CARDINAL witnesses .

Following a request by counsel , on CARDINAL DATE the court appointed an expert to prepare a valuation of the property . The expert submitted his opinion on DATE .

At the hearing of DATE counsel contested the findings contained in the expert ’s report . The hearing was subsequently adjourned as the parties again expressed their wish to reach a friendly settlement of the case .

On DATE counsel informed ORG about the parties’ failure to reach an agreement .

Hearings in the case were held on CARDINAL DATE and DATE , CARDINAL DATE , DATE , DATE and CARDINAL DATE . The parties were again examined , as well as CARDINAL witnesses .

On DATE the court requested the expert to supplement his opinion . In this connection the defendants were asked to deliver additional documents . They failed , however , to comply with this request . Hence , the expert was not able to supplement his opinion and in DATE he returned the case file to the court .

On DATE ORG appointed another expert , ORG , who submitted his opinion on DATE .

On CARDINAL DATE the applicant decided to withdraw her claim for transfer of ownership and submitted a claim for compensation instead .

The expert , as well as the defendants , was summoned for a hearing scheduled for DATE , but they all failed to comply with the summons and did not appear at the trial .

By the decision of CARDINAL DATE ORG exempted the applicant from court fees for lodging her new claim .

On DATE ORG decided that it lacked jurisdiction ratione materiae ( due to the high value of the transformed claim ) and transferred the case to ORG .

On DATE ORG again summoned expert ORG and adjourned the hearing until DATE . The expert again failed to attend that hearing .

On DATE the court found that it lacked jurisdiction ratione loci and materiae and on CARDINAL DATE transferred the case to ORG . No hearing was scheduled until DATE .

The hearing of DATE had to be adjourned since neither the applicant nor her counsel had appeared .

The subsequent hearings scheduled for DATE and CARDINAL September CARDINAL were adjourned due to the defendants’ absence .

The hearings scheduled for DATE , DATE and DATE were also adjourned , due to the non - appearance of the applicant and her counsel ( although they had both been summoned correctly ) .

On DATE the court appointed another expert , who submitted her opinion DATE .

The hearing of DATE was adjourned due to the GPE failure to appear .

Neither the applicant , nor her counsel appeared at the hearings scheduled for DATE , DATE , DATE , DATE , DATE and DATE and DATE . In consequence all these hearings had to be adjourned .

On DATE the ORG delivered a decision in the applicant ’s favour , awarding her MONEY ( ORG ) .

On DATE NORP ( CARDINAL of the defendants ) requested from the court the written grounds of that decision . His request was rejected on DATE for having been lodged out of time .

On DATE NORP ( the other defendant ) appealed against the decision of DATE , whereas NORP appealed against the decision of CARDINAL DATE .

On DATE the court summoned NORP to remedy the formal shortcomings in his appeal .

On DATE the court granted NORP leave to lodge an appeal out of time and quashed the decision of CARDINAL DATE .

On DATE PERSON ’s counsel remedied the shortcomings in his appeal against the decision of DATE . On DATE the court summoned PERSON ’s counsel to pay the appeal fee of PLN CARDINAL . On DATE NORP requested the court to exempt him from the fee . On DATE the court summoned him to provide relevant documents in support of his request ( inter alia on his current financial standing ) .

On DATE NORP lodged his appeal against the decision of DATE . On DATE the court summoned NORP to rectify the formal shortcomings of his appeal , which he did on DATE . On DATE the court summoned NORP to pay the appeal fee of PLN CARDINAL . On DATE NORP asked the court for exemption from the fee . On CARDINAL DATE the court summoned him to provide relevant documents supporting his request .

R. and NORP submitted relevant documents on DATE and DATE .

On DATE the court rejected both requests for exemption from the appeal fee . On DATE NORP appealed against this decision .

On DATE the court summoned NORP to pay the appeal fee . On DATE he again requested to be exempted from the fee . The court considered his letter as an appeal and a request to be granted leave to appeal out of time against the decision of DATE . It scheduled a hearing for DATE to examine this request .

On DATE and DATE the court heard NORP and adjourned the hearing until DATE , having summoned NORP to submit certain documents . On CARDINAL DATE NORP informed the court that he could not attend the hearing and asked for an adjournment .

On DATE the court dismissed the applicant ’s request to be granted leave to appeal out of time against the decision of DATE . On DATE NORP asked to be served with written grounds for this decision . On DATE the court dismissed his request .

On DATE the court dismissed D ’s appeal against the decision of DATE as having been lodged out of time .

On DATE the court dismissed on formal grounds D ’s appeal of DATE against the decision of DATE . NORP appealed and his appeal was dismissed on DATE as having been lodged out of time . He appealed again . On CARDINAL DATE the court summoned him to pay a fee for this appeal .

On DATE the ORG referred the case to ORG .

On DATE ORG dismissed NORP ’s appeal against the decision of DATE and NORP ’s appeal against the decision of DATE .

On DATE the ORG summoned NORP to pay an appeal fee for his appeal against the decision of DATE .

On DATE the court held a hearing to examine another of NORP ’s requests to be granted leave to appeal out of time against the decision of CARDINAL DATE . The court dismissed his request and consequently dismissed his appeal on DATE .

On DATE the court again summoned NORP to pay an appeal fee .

DATE . On DATE the ORG dismissed GPE appeal against the decision of DATE on formal grounds ( for his failure to pay a court fee ) . NORP appealed against this decision .

On DATE the applicant asked ORG to issue an enforcement order for the judgment of DATE , submitting that the defendants , by lodging successive procedural motions and subsequently appealing against all decisions , were aiming solely at prolonging the proceedings and avoiding the execution of the judgment . She was informed that the decision was not yet final and could not be enforced , because various appeals lodged by the defendants were pending at that time .

On DATE R. ’s appeal was rejected by ORG .

On CARDINAL DATE the PERSON District Court made an enforcement order on the decision of DATE and it became final .

On DATE the applicant lodged with ORG a complaint under LAW of DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) alleging the excessive length of pending civil proceedings . At the same time she asked the court to have her complaint transferred to ORG , which was competent to examine it . She described in CARDINAL pages the delays in the proceedings , and submitted that : “ for these reasons I lodge a complaint about the excessive length of the proceedings ” . She also asked the court to instruct the lower court to terminate the proceedings without further delay .

The Nowy Dwór Mazowiecki District Court transferred the case file to ORG DATE , after the applicant had intervened requesting that her excessive length complaint be dealt with .

On DATE ORG rejected her complaint on formal grounds . It considered that it was tainted with a formal shortcoming , namely that it did not contain an express request to find that there had been an unreasonable delay in the proceedings .

On DATE the applicant lodged a fresh complaint of excessive length of proceedings . In the title of her application she referred in direct terms ( by providing the case ’s exact register number ) to the currently pending appeal proceedings , as required by the relevant law . In the substance of her complaint she described in detail the proceedings in their entirety as pending from DATE . She also indicated the different register numbers with which the case was designated throughout the entire period of its examination . She concluded her complaint by requesting the court to immediately terminate the proceedings in her case , which had been pending as of DATE . It transpires that she complied with all the formal requirements of a complaint as provided by LAW .

On DATE ORG rejected her complaint as unfounded . The court considered only the length of the appeal proceedings , the applicant had referred to in her complaint ’s title , namely after the decision of DATE had been given , and found that there were no unreasonable delays in the examination of the numerous requests made by the defendants after that date . They were considered speedily . On several occasions the defendants had to be summoned to rectify formal shortcomings in their requests . In this connection the court observed that the time - limits given had been complied with . Hence , no evidence was found in support of the conclusion that unreasonable delays had occurred in the case . The court concluded that nothing in the case file could suggest that the length of proceedings was excessive .

On DATE the Law of DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) entered into force . It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings . A party to pending proceedings may ask for the acceleration of those proceedings and/or just satisfaction for their unreasonable length under LAW read in conjunction with LAW .

Article CARDINAL § CARDINAL provides that a complaint must include :

CARDINAL ) a request to find that there was an unreasonable delay in the impugned proceedings ;

CARDINAL ) an indication of circumstances that would justify the request .

According to LAW , when a complaint does not meet the requirements of LAW , it must be rejected without a prior request to the plaintiff to remedy the shortcomings in the complaint .

For further references concerning the relevant domestic law and practice in respect of remedies available for the excessive length of judicial proceedings , in particular the applicable provisions of LAW , see the ORG ’s decisions in the cases of ORG v. GPE no . CARDINAL/CARDINAL ( dec . ) , § § DATE , ECHR CARDINAL-V , and NORP v. GPE no . CARDINAL ( dec . ) , ORG CARDINAL-VIII , and the judgment in the case of GPE v. GPE , no . CARDINAL , § § DATE , ECHR CARDINAL-V.


Violation of Art. 6-1;Not necessary to examine art. 6-2 and 6-3;Not necessary to examine P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient

The applicant , a NORP national , had been a retail butcher in PERSON since DATE . He died on DATE , but DATE his widow and CARDINAL daughters advised the Commission that they considered themselves to have a material and moral interest in seeing completed the proceedings he had instituted .

On DATE , his shop , where he employed several persons , was the subject of a visit by Mr. PERSON , an official in ORG . This official found an infringement of LAW of DATE " fixing the selling price to the consumer of beef and pig meat " ( " the Decree of CARDINAL DATE " ) , in that Mr. PERSON had not reduced his prices of pork by MONEY as required by LAW . CARDINAL and his " retail margin " for that meat was CARDINAL BF in excess of the maximum - CARDINAL BF per kilogram - permitted under LAW . CARDINAL ( see paragraph CARDINAL below ) .

When questioned in this connection , the applicant made the following statement , according to the report drawn up DATE by the inspector ( translation from the NORP original ) :

As is shown by the price - markings recorded by you , for beef I have applied the reduction provided for in the Ministerial Decree of CARDINAL DATE and my margin is CARDINAL F.

As concerns pig meat , I have not applied the reduction and my margin is in excess of CARDINAL F.

This is because my calculations were for category CARDINAL pig meat instead of category CARDINAL pig meat . This was a mistake on my part . I acted in good faith and , in your presence , I immediately reduced the prices in order not to exceed the margin of CARDINAL F. "

He added the following note , signed , like the report , by Mr. PERSON and himself :

" ... I buy my meat on the hoof and ... the costs listed below were not included by you in your calculations :

( CARDINAL ) CARDINAL F commission per live kg ;

( CARDINAL ) transport costs of CARDINAL F per animal , that is QUANTITY ;

( CARDINAL ) slaughter costs : CARDINAL F per animal ;

( CARDINAL ) slaughter tax : CARDINAL per animal ;

( CARDINAL ) transport costs for each carcase : CARDINAL F per animal . "

The inspector did not supply a copy of the report to Mr. PERSON . He set out the foregoing facts in a formal statement , known as a " pro - justitia " , dated DATE ; ORG transmitted this formal statement on DATE to the procureur du Roi attached to ORG .

On DATE , the PERSON procureur du PERSON ordered the provisional closure of the applicant ’s shop within TIME from notification of the decision . The decision cited the gravity of the facts , whilst noting that there was no need to request a sentence of imprisonment ; it referred to the interview report of DATE and to sections CARDINAL par . CARDINAL , CARDINAL , DATE to CARDINAL , DATE and CARDINAL of ORG and Prices Act of DATE ( see paragraphs CARDINAL to CARDINAL below ) . The closure was to come to an end either on DATE after the payment of a sum of CARDINAL BF by way of friendly settlement ( minnelijke schikking ) or , at the latest , on the date on which judgment was passed on the offence ; Mr. PERSON had DATE in which to indicate whether he accepted the offer of settlement .

DATE the procureur du PERSON wrote Mr. PERSON the following letter ( translation from the NORP original ) :

You are hereby informed of the decision provisionally closing your business in pursuance of LAW par . CARDINAL of the LAW of DATE . Your attention is particularly drawn to the heavy penalties imposed by the LAW for failure to comply with this decision .

The amount of the friendly settlement proposed is fixed at CARDINAL F.

I should be obliged if , within DATE , you would transfer this sum to ORG Account no . ... and advise me whether you accept the offer of settlement .

The closure of your business will be terminated DATE after you make the required payment .

On DATE , a deputy superintendent of police delivered this letter to the applicant together with a copy of the decision to which it referred . Mr. PERSON replied on DATE by registered letter in the following terms ( translation from the NORP original ) :

" Dear Sir ,

Kindly note that I am DATE paying the sum proposed in your letter of CARDINAL DATE by way of friendly settlement ; consequently , the criminal proceedings become barred once and for all ( section CARDINAL par . CARDINAL of the Act of DATE ) and the closure of my establishment will no longer be put into effect .

Kindly note , however , that I reserve all my rights to take action against ORG before the civil courts , in particular for the restitution of this sum plus damages .

In point of fact :

- I have not as yet received any copy of the report which is the basis of the penalties imposed in my respect ;

- as far as I can recollect , the findings of those drawing up the report did not take account of the factors which are essential for calculating the prices ;

- an application for a declaration of annulment of the Decree of CARDINAL DATE will be lodged before the ORG d’État which has already annulled CARDINAL similar Decrees ( see the judgment of DATE ) ;

- a closure can only come into effect TIME after notification of the conviction ( section QUANTITY par . CARDINAL of the LAW refers to section CARDINAL par . CARDINAL which speaks exclusively of convictions ) .

I have therefore paid the amount of the friendly settlement for the sole purpose of limiting the damage suffered by me ; for the prejudice resulting from the closure of my establishment as from DATE until the eventual hearing of the case before the criminal court might be far in excess of CARDINAL F and the civil court might then draw certain conclusions from the fact I had not mitigated my loss .

Following this payment , which had in fact already been made on DATE , the applicant did not have his shop closed . He did not bring any action before the civil courts for restitution of money paid over without cause and for damages ; nor did he apply to the ORG d’État for a declaration of annulment of LAW DATE .

At the relevant time , ORG intervention in the sphere of prices was governed in GPE by ORG and LAW ( " LAW " ) . LAW derived from LAW of DATE " on repression of offences against rules relating to the country ’s supplies " , as several times amended , in the last instance by an Act of DATE which had modified the original title .

Section CARDINAL par . CARDINAL , CARDINAL and DATE , read in conjunction with section CARDINAL par . CARDINAL , empowered the Minister responsible for economic affairs to fix by Decree , for the whole or part of the territory of the GPE , price - ceilings to be respected in transactions of sale , offer for sale or purchase of products , materials , foodstuffs , goods or animals , as well as the maximum profit to be made by any vendor or intermediary .

The investigation and the finding of offences against LAW were normally the responsibility of officials from ORG , acting on behalf of the Minister , and formed the subject of reports which were transmitted to the procureur du Roi ; these reports were deemed to be conclusive until production of proof to the contrary ( section CARDINAL ) .

In addition to imprisonment of DATE to DATE and a fine of CARDINAL BF ( section CARDINAL par . CARDINAL ) , offenders were liable to various criminal and administrative sanctions ( sections CARDINAL par . CARDINAL , DATE , DATE , CARDINAL par . CARDINAL to CARDINAL , DATE , DATE and DATE bis ) . CARDINAL of the most serious of these sanctions was closure of the offender ’s business , which took CARDINAL forms :

( a ) Under LAW par . CARDINAL , the Minister could direct closure on a provisional basis , for DATE at the most , in the event of refusal to comply with the instructions given by officials empowered by him ; an appeal having suspensive effect was available to the person concerned before the judge in chambers at ORG with jurisdiction in criminal matters .

( b ) Section CARDINAL , second paragraph , allowed the Minister , even in the absence of any offence , also to close establishments whose activity he considered useless or harmful .

( c ) Section CARDINAL par . CARDINAL enabled the courts to order closure for a period not exceeding DATE , without prejudice to any penalty of imprisonment , fine or forfeiture ( section CARDINAL par . CARDINAL to CARDINAL ) .

( d ) In the instant case , the closure decision was taken by the procureur du Roi . It was based on LAW par . CARDINAL according to which :

" The procureur du Roi or , where preliminary investigations have been instituted , the investigating judge may order the provisional closure of the offender ’s establishment . The closure may not continue beyond the date on which judgment is passed on the offence .

The CARDINAL/CARDINAL Act did not provide for any appeal against such a decision to which , according to LAW par . CARDINAL in fine , section CARDINAL par . CARDINAL ( b ) applied . This latter section read as follows :

" The closure ... shall come into effect TIME after notification of the conviction . If the decision of closure is contravened , the procureur du Roi shall take all appropriate action in order to secure compliance therewith , in particular by affixing seals ... , and the offender shall be liable to imprisonment of DATE and to a fine "

which , in DATE , was fixed at the amount of QUANTITY BF .

Whereas the first CARDINAL forms of closure had apparently not been used for DATE , the same was not true of the fourth form . Provisional closure of that type was ordered in the context of judicial proceedings already instituted or imminent and could thus precede a sentence of closure imposed by a court of law in pursuance of section CARDINAL par . CARDINAL . However , according to decided case - law , provisional closure constituted an administrative measure differing in character from and incapable of being offset against any such sentence ; it was not entered on the judicial records ( casier judiciaire ) or on the information extracts ( bulletins de renseignements ) and lists of convictions issued by the municipal authorities .

When he did not consider it necessary to seek a sentence of imprisonment and if proceedings for the offence had not yet been instituted before the trial court , the procureur du Roi could , under LAW par . CARDINAL , inform the offender by registered letter that it was open to him to avoid prosecution by effecting CARDINAL or more payments or services ( " prestations " ) . LAW listed CARDINAL such payments or services from which the procureur du Roi made his choice . The first consisted of paying over a certain sum of money which might , if appropriate , be greater than the maximum fine fixed by the LAW . The procureur du Roi called on the person concerned to advise him within a given period whether he accepted the settlement proposed ; full and punctual performance of the settlement barred criminal proceedings .

Although often referred to as a fine by way of settlement , the payment thus made was not regarded in NORP law as a penalty . Consequently , the payment could not be taken into consideration when dealing with further offences and was not entered on the judicial records . It was nevertheless notified to the municipal authorities of the person ’s place of residence ; until DATE had expired , mention of it was included in the information extracts the municipalities supplied to the judicial authorities but not in the lists of convictions intended for other authorities . In that respect , settlements negotiated in accordance with LAW par . CARDINAL of the CARDINAL/CARDINAL Act resembled those provided for under , inter alia , Articles CARDINAL to CARDINAL and CARDINAL to QUANTITY of LAW .

With the possible exception of CARDINAL or a few instances dating back to DATE , the closure orders issued by a procureur du Roi in pursuance of paragraph CARDINAL of LAW of LAW were always accompanied by an offer of settlement made in accordance with paragraph CARDINAL . Such was the case in CARDINAL decisions - including the CARDINAL affecting the applicant - taken in DATE with regard to butchers in the district of PERSON . On the other hand , the converse situation - an offer of settlement without there being any closure order - was a frequent occurrence .

Again , under the terms of LAW bis , a provision not applied in Mr. PERSON ’s case , the officials specially empowered for these purposes by the Minister could , on finding an offence , fix a sum whose voluntary payment by the offender likewise barred criminal proceedings . In such cases , the settlement was not even entered on the information extracts issued by the municipal authorities .

Since the period under consideration , section CARDINAL par . CARDINAL of LAW has been amended in CARDINAL respect by section CARDINAL of ORG of DATE , but each of the clauses quoted or summarised above , including in particular LAW , was left unchanged .

The offence established in the instant case by ORG General related to LAW DATE " fixing the selling price to the consumer of beef and pig meat " ( see paragraph CARDINAL above ) . This Decree , which was passed pursuant to LAW , came into force on DATE ; it was intended , like numerous other Decrees preceding it , to restrain rises in the cost of products constituting a major item in the consumer ’s budget and in the computation of the official price - index .

Article CARDINAL dealt with pig meat . Paragraph CARDINAL of Article CARDINAL required retailers in business before DATE - such as the applicant - not to charge in excess of the prices prevailing during DATE of DATE as increased by MONEY . Paragraph CARDINAL specified that until DATE the selling prices to the consumer , inclusive of value - added tax , charged in accordance with paragraph CARDINAL , had to be marked down by MONEY . The combined effect of these CARDINAL paragraphs was to produce a price reduction of MONEY as compared with the levels current in DATE .

Article CARDINAL , however , contained a proviso . Under paragraph CARDINAL of Article CARDINAL , retailers able to show that they were not obtaining a retail margin of CARDINAL BF per kilogram were , subject to not exceeding that margin , allowed to charge prices other than those following from LAW . LAW indicated what was to be understood by " retail margin " , namely the difference between " the weighted average selling price not inclusive of value - added tax " and " the weighted average purchase price " , these CARDINAL prices being in their turn defined in paragraphs CARDINAL and CARDINAL . Paragraph CARDINAL did not include any provisions regarding those butchers - a minority of the order of MONEY - who , like Mr. PERSON , purchased their meat on the hoof .

Under LAW , offences against LAW DATE were to be investigated , established , prosecuted and punished in accordance with the provisions of Parts II and III of the CARDINAL/CARDINAL Act . Section II , which was applied in Mr. PERSON ’s case , appeared in Part III of the latter Act .

The criminal prosecutions launched for failure to comply with the Decree of CARDINAL DATE resulted , in numerous cases , in acquittals . For the most part , the relevant courts gave as the ground for their verdict the illegality of the Decree ; in so doing they were acting in pursuance of LAW which states : " The courts and tribunals shall not apply any general , provincial or local decrees and regulations save insofar as they are in accordance with the law . " In the early stages , the prosecuting authorities entered appeals which , however , failed ; eventually they abandoned any attempt at appeal .

Certain courts adopted another solution : faced with the accused pleading the incompatibility of the Decree with Community law , they requested ORG of ORG to give a preliminary ruling pursuant to LAW establishing ORG ; for reasons that were the subject of dispute before the Commission , ORG did not have the occasion to deliver any ruling .

In a case brought before it on DATE by a retail butcher and pork - butcher , the ORG d’État declared the Decree of CARDINAL DATE to be contrary to the principle of the equality of all NORP before the law ( LAW ) : the appreciable distinction drawn between retain according to the period of their establishment in business did not appear to the ORG d’État to be justified either by any technical necessity or by imperative considerations of general economic interest . It accordingly annulled the Decree on DATE ( ORG v. ORG ) .

CARDINAL earlier Decrees of a similar kind , dating back to DATE and DATE , had suffered the same fate on DATE ( ORG and ORG v. ORG ) .

After being amended on DATE , CARDINAL DATE , CARDINAL DATE and CARDINAL DATE , the Decree of CARDINAL DATE was repealed on DATE . The Decree which replaced it on the latter date , and which came into force on DATE , contained - as did the Decrees of DATE and CARDINAL DATE specific clauses relating to retailers who purchased their meat on the hoof ( LAW . CARDINAL , last sub - paragraph ) . LAW DATE was the subject of a request for a preliminary ruling submitted by ORG ; ORG of ORG gave its decision on the request on DATE ( Procureur du Roi v. PERSON , case CARDINAL , ORG Reports DATE , pp . DATE ) .