Preliminary objection joined to merits and dismissed (applicability);Remainder inadmissible;Violations of Art. 6-1;Violation of P1-1;Just satisfaction reserved

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

NORP The applicant company is a private company registered in GPE . At the time of the events it carried out barter trade operations with NORP companies involving , in particular , exchange of some food raw materials from GPE for NORP crude oil and further sale of finished oil products .

On DATE the applicant company signed a contract with ORG ( “ the Refinery ” – the biggest company in the oil refining industry in the country at the time , with PERCENT of its shares being owned by ORG for the refining of QUANTITY of crude oil .

On DATE ORG ( “ the HAC ” ) , allowing a claim brought by the applicant company , directed the ORG to deliver to the applicant company the oil products produced from its raw materials .

During DATE and DATE the ORG only delivered a small part of the oil products to the applicant company .

On DATE the applicant company supplied QUANTITY of crude oil to the Refinery for refining .

In DATE the ORG - owned companies in the GPE region involved in harvesting , coal mining and other activities essential for the local economy suffered a particularly acute shortage of fuel . As a part of the emergency measures instituted to overcome the crisis , the local authorities directed the Refinery to provide for local needs , free of charge , some oil products , regardless of whether they had been produced from oil owned by customers .

Following a further claim brought by the applicant company , on DATE the ORG ordered the ORG to comply with the contract of DATE .

At some point the Refinery was renamed ORG ( “ NORP ” ) .

By a ruling of CARDINAL DATE , the ORG amended its judgment of DATE and ordered ORG to pay the applicant company for the undelivered oil products .

On DATE ORG instructed ORG for ORG ( “ Derzhnaftogazprom ” ) to verify whether the applicant company ’s claims against ORG were justified . As can be seen from a letter from Derzhnaftogazprom to ORG of CARDINAL DATE , it found the claims to be well grounded . It was noted in the letter , in particular , that the main reason for the Refinery ’s failure to comply with its contractual obligations vis - à - vis the applicant company had been the unpaid diversion of oil products by the regional authorities in DATE .

On DATE the ORG awarded the applicant company compensation for the lengthy non - enforcement of the judgments of DATE and CARDINAL DATE and ordered that the court fees be paid by ORG .

On DATE the applicant company applied to the ORG for the initiation of insolvency proceedings against ORG , referring to the lengthy non - enforcement of the judgments of CARDINAL DATE and DATE .

On DATE ORG ( “ the ORG ” ) , to which the ORG had referred the aforementioned motion of the applicant company , started insolvency proceedings .

On DATE it made a preliminary finding that the outstanding debts of LyNOS vis - à - vis the applicant company had been confirmed by documentary evidence as CARDINAL NORP hryvnias ( ORG ) and QUANTITY of oil products .

On DATE the applicant company asked the ORG to secure the PERSON claims by seizing the ORG ’s shares in ORG .

On DATE the court allowed the request and prohibited “ [ LyNOS ] , ORG and any other authorities from taking any action with a view to transferring ownership or changing the status of the ORG ’s shares in [ ORG ] until the court completes the [ insolvency proceedings ] . ”

On DATE ORG informed the ORG ’s President of the results of its investigation into the reasons for the arrears and the insolvency of ORG . It concluded , inter alia , that ORG ’s debts vis - à - vis its customers had mainly been caused by the unpaid diversion of oil products for ORG needs in DATE .

On DATE the applicant company concluded an agreement with ORG concerning the procedure for and conditions of repayment of the latter ’s arrears resulting from the judgments of the ORG of DATE and DATE , as well as the ruling of ORG . Having signed that agreement , the debtor recognised its debt vis - à - vis the applicant company in the amount of ORG CARDINAL , which was , according to the agreed schedule , to be repaid in kind within DATE . The parties also underlined that the agreement could not be understood as a friendly settlement and did not imply a request for termination of the insolvency proceedings against ORG .

On DATE the ORG stayed the proceedings until the debtor , the creditors and the competent authorities had agreed on guarantees for the repayment of the arrears .

On DATE the applicant company requested that the Prime Minister consider the possibility of transferring the ORG ’s shares in ORG , equal to PERCENT of its share capital , into its trust for the period of the repayment of the arrears as a guarantee of that repayment .

On DATE the ORG resumed the insolvency proceedings .

On DATE it decided to leave unexamined the outstanding claims of ORG ’s creditors . At the same time , referring to the need to continue to make efforts to settle the PERSON claims and prevent the debtor ’s insolvency , the court decided to conduct further review of the parties’ actions in that connection . Namely , it instructed ORG and the creditors whose claims remained unsettled to inform it on a DATE basis of the progress of the repayment of the arrears . Moreover , all the parties concerned were instructed to develop a mechanism to ensure the continued repayment of the arrears . The court also decided to invite ORG to take measures to prevent the insolvency of ORG . The court noted that it was common ground between the parties that the arrears could be repaid in kind .

On DATE the ORG decided that the insolvency proceedings should be heard by a CARDINAL - judge panel , instead of by a single judge . Prior to this , the single judge sitting in the case had been challenged by the applicant company .

On DATE wrote a letter to the First Deputy Speaker of ORG asking for his “ assistance in establishing the lawfulness ” of the ORG ’s rulings issued in the course of the insolvency proceedings .

On DATE the First Deputy Speaker of ORG wrote a letter to the acting President of the ORG with a request “ not to tolerate any prejudice or issuance of ungrounded decisions concerning the insolvency of NORP ” , which was claimed to be strategically important for the ORG . The letter also contained the following request :

“ ... with a view to preventing any infringements of the interests of the ORG and violations of the legislation of GPE , you are requested to take an urgent decision quashing the ruling of CARDINAL DATE and terminating the proceedings concerning the insolvency of ORG . ”

By a letter of DATE the ORG ’s President replied that the ruling of CARDINAL DATE was in compliance with the relevant legislation and could not be reviewed under a supervisory review procedure .

The applicant company , in turn , requested that the ORG review the ruling of CARDINAL DATE by means of a supervisory review procedure . It maintained that , while the debts of ORG had been confirmed by documentary evidence and had to be repaid , the court had failed to establish the final amount of the outstanding debt or to demand any effective guarantees of its redemption from the debtor .

On DATE the Panel of the ORG for ORG , Rulings and Resolutions ( “ the Review Panel ” ) quashed the ORG ’s ruling of CARDINAL DATE inasmuch as it concerned leaving the outstanding PERSON claims unexamined , and remitted the case for fresh examination by a different bench . It noted that the procedures by which the debt would be repaid and the scope and methods of the debt ’s repayment remained unclear .

On DATE the Chairman of ORG , who was also the Chairman of ORG , sent a “ statement regarding the case ” to the ORG , in which he noted , in particular , the following :

“ The prolonged continuation of the insolvency proceedings against ORG is inflicting both pecuniary and non - pecuniary damage on the company and deters potential investors . ... I urge you to terminate the insolvency proceedings against ORG . ”

On DATE LyNOS complained to the President of GPE that the ORG ’s ruling of DATE had been unlawful and asked him to intervene with a view to terminating the insolvency proceedings .

On DATE the Prime Minister informed the ORG ’s President that the management board and the trade unions of ORG disagreed with the court ’s ruling of DATE and requested that “ this issue be considered in line with the established procedure ” .

On DATE ORG asked the ORG to terminate the insolvency proceedings . It noted that it could not proceed with the sale of its shares in ORG , given the prohibition by the ORG in its ruling of DATE on any change in the status of the company ’s shares .

On DATE the ORG found substantiated the requests of the PERSON committee to speed up the final determination of the amount of outstanding arrears and to demand guarantees of their repayment from the debtors . It instructed both the creditors and the debtor to comply with their obligations under its earlier ruling of DATE and to develop a scheme ensuring the further repayment of the arrears . The court rejected as unsubstantiated a request by ORG to terminate the insolvency proceedings so that it could conduct a non - commercial competition for the sale of the shares . It instructed the ORG to submit to it all the documents concerning the aforementioned competition and its results .

On DATE the ORG considered the applicant company ’s request for determination of the final amount of the debtor ’s outstanding arrears owed to it . The court noted that the applicant company had originally estimated the arrears at ORG MONEY , but , following negotiations with the debtor , that amount had been reduced to UAH CARDINAL in accordance with the agreement of CARDINAL DATE ( see paragraph CARDINAL above ) . Following the partial implementation by LyNOS of that agreement in DATE , which the court viewed as confirmation that ORG had accepted its terms , the outstanding debt was UAH CARDINAL,CARDINAL,CARDINAL .

Having regard to the critical financial situation of the debtor , as well as its strategic significance for the economy of the ORG , the applicant company requested that the court confirm that amount as the final total of the arrears . Furthermore , it was prepared to consider the debt satisfied in full once PERCENT of it had been repaid .

LyNOS , in turn , accepted the applicant company ’s claims only in part and requested that the court establish the amount of the outstanding arrears to be paid in kind . It considered the rulings of the ORG allowing the applicant company ’s claims to be unlawful , even if they had remained valid . The company also blamed the Government for its non - compliance with its contractual obligations vis - à - vis the applicant company . It maintained that the agreement of DATE could not be considered valid , as it did not regulate essential terms such as costs , time limits and conditions placed upon the supply of the oil products .

The court found that the total outstanding debt of ORG to the applicant company was UAH CARDINAL,CARDINAL,CARDINAL .

On DATE complained to the President of GPE that ORG and the ORG ’s President had failed to bring a protest on the basis of ORG ’s request with a view to overturning the ORG ’s ruling of DATE and , accordingly , terminating the insolvency proceedings . It was noted in the letter :

“ ... the absence of prosecutorial reaction to the unlawful insolvency proceedings against ORG ... and the absence of a clear position on the part of the President of ORG as regards this case , multiplied by the boldness , unsated ambitions and , probably , some selfish interests on the part of the PERSON committee , ... have become an obstacle not only to the normal process of privatisation of ORG ’s shares , but even to its normal functioning . ”

On DATE the ORG ’s President wrote a letter to the Prime Minister ( no . DATE ) , in which he “ informed [ him ] of the ongoing insolvency proceedings against ORG pursuant to the instructions of the President of GPE of DATE and CARDINAL DATE ” . The following was noted , inter alia , in the above letter :

“ The arrears of the former ORG [ its ] creditors who undertake entrepreneurial activities in GPE , are , first of all , the result of its improper compliance with its contractual obligations .

Having received oil owned by customers , the refinery is obliged to return finished oil products to its owners as agreed . The companies had to supply most of those oil products , [ in turn ] , to NORP agricultural enterprises .

The systematic violations by ORG of its contractual obligations , as well as its evasion of enforcement of the judicial decisions , have not only resulted in the arrears , but have also led to their accrual . ...

In the course of the examination of the case , the court , within its competence , took appropriate measures for settlement of the debts between ORG and its creditors . ORG concluded civil law agreements with some of the creditors governing the terms and conditions of the ORG repayment , which are being implemented and which offers some hope that all the arrears can be settled that way . This is the expectation that the debtor itself expressed in its application to the President of GPE . However , despite this , the debtor is evading complying with the procedure of debt repayment agreed with [ the applicant company ] .

Having regard to the difficult economic situation of ORG , [ the applicant ] company considerably reduced [ its ] claims ... - from ORG CARDINAL,CARDINAL,CARDINAL to ORG CARDINAL ....

I note for your information that the arrears of ORG in respect of [ the applicant company ] emerged in DATE and are confirmed by judgments of ORG of GPE . The lawfulness of those judgments has been verified by the supervision instances , including by LAW of ORG , which upheld them .

However , since the commencement of the insolvency proceedings , ORG has not enforced the judgments despite the fact that they have the force of law . Its statement that by the conclusion of the agreements with the creditors concerning the terms of and procedures for the repayment of the arrears it was released from the necessity to comply with the judgments is unlawful .

GPE , on the instruction of ORG of DATE ... , investigated and fully confirmed the fact of ORG ’s non - compliance with its contractual obligations , as a result of which the claims of [ the applicant company ] were found to be fully justified .

In its letter of CARDINAL DATE ... this authority noted that during DATE the leadership of the GPE regional authorities had grossly violated NORP legislation , having ordered ORG to divert , free of charge , the oil products belonging to [ the applicant company ] . This undermines the statements of the debtor that it was not its fault that those oil products had not been delivered to their owners .

The debtor did not even use the aid provided by the Government for repayment of the arrears . In DATE PERSON provided ORG with resources ... and approved a schedule of delivery of oil products during the period from DATE which was to remain in force until the full repayment of the debt to [ the applicant company ] . The [ debtor ] company delivered QUANTITY of those oil products during DATE and refused further repayment of the arrears , which exceeded this volume by several times .

The demand to terminate the proceedings contradicts the law and can not be satisfied until the complete repayment of the arrears . ...

In the course of the examination of the case , the court exhausted all legally envisaged possibilities of saving the debtor from insolvent liquidation . The creditors have made it clear that it is not their goal to have the debtor liquidated or to get its assets into their possession . They insist on gradual repayment of the debts in compliance with the agreed schedules and , subject to that , do not object to termination of the proceedings upon the complete repayment of the arrears .

Given the complexity of the settlements between the debtor and the creditors and the lack of clarity as to the final time - frame of the repayment of the arrears , which inevitably leads to the accrual of damages due to inflation and a loss of income for the creditors , and with a view to the recovery of the debtor company , it is deemed necessary to create a taskforce to investigate the problem onsite .

In our opinion , it would be desirable to investigate and finally determine the destiny of the oil products produced by ORG from the oil owned by customers . ”

On DATE , DATE , ORG created a taskforce to establish the reasons for the arrears of NORP vis - à - vis its foreign and domestic creditors and to study the consequences of settlement of their claims . It consisted of representatives of : ORG , ORG , ORG , ORG , ORG , ORG , ORG , ORG , ORG and ORG , ORG , ORG , and ORG .

On DATE the taskforce issued its report , which contained , inter alia , the following findings . ORG was the biggest oil refinery in GPE and was able to satisfy up to PERCENT of the fuel needs of the country . All the oil it had refined during DATE belonged to NORP commercial entities , which had showed increasing interest in the company given its proximity to the NORP border . The report concluded that the company was insolvent . It noted that the final amount of its arrears vis - à - vis the applicant company , as confirmed by the ORG in its ruling of DATE , was UAH CARDINAL . The main reason for the company ’s indebtedness had been the decision of the ORG authorities ( in DATE – according to the report in question , in DATE according to all the other documents in the case file ) to divert the oil products produced by ORG from oil owned by customers for ORG needs .

The report also contained the following statement :

“ The taskforce supports the proposal [ apparently , advanced by ORG ] that ORG of GPE must also take into account ... the ORG ’s share of the company ’s assets and the other factors which were not taken into account during the previous hearings . This concerns fulfilment of the obligations in kind , since their translation into pecuniary terms caused the amount of the arrears to be overstated . ”

However , the taskforce considered that the amount of the outstanding debt of the company vis - à - vis the applicant company had to be verified , by means of expert reports if required . It further underlined a finding of the ORG in another case , according to which the indexation of debt to inflation had not been envisaged by the relevant legislation , and maintained that a similar line should be followed in the present case . It recommended suspending the insolvency proceedings until the “ factual indebtedness of ORG vis - à - vis commercial enterprises was established on the basis of a documentary audit ” .

According to the above report , the taskforce had been created at the request of the ORG ’s President , such request having been expressed in a letter ( no . DATE ) dated DATE , and pursuant to the above - mentioned order of ORG .

DATE . On DATE ORG rejected a request from ORG for an extension of the time - limit for challenging the ORG ’s ruling of DATE under the supervisory review procedure .

On DATE the ORG ’s President lifted the ban on changing the status of ORG ’s shares which had been imposed by the ORG ’s ruling of DATE . This was done at the request of ORG , which intended to conduct a non - commercial competition for the sale of the ORG ’s shares in the company equal to PERCENT of its share capital . The sale was intended to help the company overcome its financial crisis and avoid insolvency .

On DATE the First Deputy Prime Minister wrote a letter to the ORG ’s President in which he asked him to also lift the ban on transferring the ownership of ORG ’s shares . The letter stated :

“ ... the members of the taskforce created at your request by an order of the ORG noted that the amount of [ ORG ’s ] arrears vis - à - vis its domestic creditors requires further clarification and in - depth and thorough verification .

Given the fact that ORG runs the biggest and the most modern oil refinery in GPE and having regard to its importance to the economy and security of the ORG , ... you are requested to consider the findings of the taskforce , to lift the ban on the sale of the company ’s shares and to postpone the examination of the insolvency proceedings pending a determination of the final amount of its arrears vis - à - vis the domestic creditors . ”

On DATE the First Deputy Prime Minister instructed ORG , ORG , ORG , ORG and ORG , ORG , ORG , Derzhnaftogazprom and ORG to ensure that a “ thematic documentary audit of the agreements for oil refining entered into by ORG in DATE and the amount of [ its ] arrears vis - à - vis the domestic creditors ” be undertaken by DATE .

On DATE ORG informed the ORG that it had checked the agreements entered into by ORG in DATE and found that the company had delivered oil products to ORG agricultural enterprises pursuant to governmental instructions . There had been no documents or information suggesting that the Government had ever paid for that . As a result , the arrears of ORG ( then called the Refinery ) had emerged vis - à - vis its customers , commercial enterprises , and as of DATE had been equal to QUANTITY of oil products .

On DATE the ORG rejected a request by ORG for an expert assessment of its arrears in respect of the applicant company , noting that it had already established the final amount of those arrears . On DATE and DATE ORG upheld that ruling .

On DATE the applicant company lodged a request with ORG for review of the ruling issued by the ORG ’s President on DATE . It claimed that he had lacked the power to make such a ruling . The applicant company submitted that the creditors had not previously challenged the ruling because it had been issued in order to enable a non - commercial competition to be held for sale of the ORG ’s shares , amounting to PERCENT of the share capital in the company , and the competition had been subject to a guarantee that the arrears would be repaid by the company ’s new owners . Referring to the fact that such a competition had never taken place and that , according to the media , there was instead a new plan to sell PERCENT of the shares ( a controlling share ) without any guarantee of repayment of the debts , the applicant company had sought to have the ruling of DATE overturned and its claim secured by a ban on the sale of the ORG ’s shares in ORG until the insolvency proceedings were complete .

On DATE the ORG ’s President wrote a letter to the First Deputy Prime Minister , in which he noted that the original claim of the applicant company in respect of ORG had been reduced through an agreement between the parties from ORG CARDINAL,CARDINAL,CARDINAL to ORG MONEY , with the latter figure having been confirmed by the court . The letter stated that the creditors had agreed to a restructuring of ORG ’s arrears for a term of DATE , subject to an approved debt repayment schedule being formalised by a judicial decision and having its enforcement guaranteed . At the same time they had agreed , subject to the aforementioned conditions , to reduce the amount of the arrears payable in kind . With reference to the aforementioned points , the ORG ’s President underlined that the court had exhausted all procedural possibilities for saving the debtor from insolvent liquidation . He proposed to take into account the above suggestions of the creditors for overcoming the company ’s financial crisis made in the extrajudicial restructuring process , as the situation pertaining at the time had led to the accrual of the arrears due to inflation and to a loss of income for the creditors .

On DATE the PERSON committee submitted its proposals for restoring the solvency of ORG and preventing its insolvency to the First Deputy Prime Minister . It proposed , inter alia , to transfer into the trust of the PERSON committee the ORG ’s shares in ORG in an amount equal to the company ’s arrears as a guarantee of the repayment of those arrears . The PERSON committee drew the attention of the First Deputy Prime Minister to what it described as “ unlawful pressure by the authorities on the creditors and on the court , as well as the unacceptable protraction of the search for a solution to [ this ] acute problem ” .

On DATE asked the Speaker of ORG “ to apply to ORG with a view to termination of the insolvency proceedings ” . It contended that the ORG had wrongly resumed the insolvency proceedings , having overturned its earlier ruling of CARDINAL DATE on DATE . It submitted that the ORG had “ chosen to allow the claims of the creditors , who seek unjust enrichment ... ” .

On DATE LyNOS instituted proceedings before ORG seeking to have its contracts with the applicant company for oil refining entered into in DATE and DATE , as well as the agreement of CARDINAL DATE concerning the repayment of the arrears , declared formally invalid . On DATE the ORG took the case over .

On DATE wrote a letter to the President of GPE in which it noted that extensive efforts were being made to overcome its financial crisis and that there was interest in it from a potential foreign investor . It considered , however , that “ the position of a number of non - State creditors of the company [ was ] an obstacle to obtaining an effective result from the measures taken by the ORG authorities and to realisation of the investor ’s potential ” . It underlined that the applicant company was “ blocking the possibility of resolving the problem in a civilised manner ” . The company asked the President “ to give instructions to the relevant ORG authorities to verify , within the legal framework , the soundness of [ the applicant company ’s ] claims against ORG , the nature of their emergence and to determine the correct amount of the arrears . ”

On DATE ORG ordered that a tendering commission be created to further the commercial sale of the ORG ’s shares in ORG ( representing PERCENT of its share capital ) .

On DATE the ORG rejected ORG ’s claim for the invalidation of its contracts with the applicant company entered into in DATE and DATE , as well as the agreement of CARDINAL DATE concerning the repayment of the arrears .

On DATE the ORG ’s President wrote a letter to the President of GPE with the following contents :

“ Pursuant to your instruction of DATE , I am informing you of the progress of the insolvency proceedings against ORG .

CARDINAL enterprises are creditors in this case , with claims for the repayment of arrears amounting to over QUANTITY .

In the course of the examination of the case , the court took , within its competence , certain measures to settle the debts of ORG owed to its creditors .

However , given the complexity of the settlements between the debtor and the creditors and with a view to the company ’s recovery , I request that you create a taskforce of specialists which will investigate , within the company , the problem , including clarification of the amount of the arrears . ”

On DATE ORG requested that the ORG ’s President lift the ban on sale of shares in ORG , given that the ruling of DATE had only lifted the ban on changing the status of the shares and it remained unclear whether that also concerned their sale . On DATE the ORG ’s President allowed the request .

On DATE ORG issued a report on the “ verification of the validity of the debt obligations of LyNOS vis - à - vis [ the applicant company ] and the lawfulness of inflation indexation and application of penalties ” , which had been undertaken pursuant to the instructions of ORG . It established the final arrears owed by ORG to the applicant company in the amount of ORG CARDINAL . The report considered that the findings of the ORG concerning the outstanding debt to the applicant company had been wrong and in contradiction of the applicable legislation .

By a ruling of DATE the ORG imposed a moratorium on allowing the LOC claims in the case and appointed an administrator of the debtor ’s property ( an individual person ) .

In DATE the ORG ’s shares in ORG , amounting to PERCENT of its share capital , were sold to a NORP company .

DATE . On an unspecified date in DATE ORG applied to ORG for review of the rulings of ORG and of the ORG of DATE ( both rulings concerning the amount of the outstanding debts of ORG vis - à - vis the applicant company ) on the basis of newly - discovered circumstances . It referred to the above report of ORG of DATE as the newlydiscovered circumstance warranting the review .

On DATE the ORG examined the above application . Having found that the report relied on did not contain any new information that was not known at the time when the challenged rulings had been issued , the ORG ruled to “ uphold the part of the [ relevant ] ruling regarding the final determination of the debt of ORG to the [ applicant company ] ” . The court also noted that the ruling of ORG had determined the amount of the debt only in preliminary terms , while the amount later defined as final in the ORG ’s ruling of DATE had been based on the agreement between the parties of CARDINAL DATE . Furthermore , the court had secured the LOC claims by imposing a ban on any activities involving the debtor ’s assets .

Later in DATE the ORG ’s President , relying on LAW , instructed his CARDINAL deputies to review the ORG ’s ruling of DATE , as , according to him , “ it had virtually [ paralysed ] the work of a company strategically important for the ORG , which could harm the property interests of both the creditors and the debtor , as well as undermine the fulfilment of the investor ’s obligations to ORG ” .

On DATE ORG allowed an application brought by ORG for the suspension of the enforcement of the ORG ’s ruling of DATE until the ORG had decided whether to undertake the supervisory review sought by the company .

On DATE ORG quashed the ORG ’s ruling of DATE ( with the exception of CARDINAL unrelated points ) and remitted the case for fresh examination .

On DATE , the Chairman of ORG wrote a letter to the President of GPE thanking him “ for [ his ] firmness and insistence in solving the issues of the company ’s privatisation and recovery ” . The letter noted that “ the positive results were self - explanatory ” . The company considered , in particular , that the new investor had contributed to overcoming its crisis . The letter also contained the following statements :

“ As a manager , I find disturbing the actions of [ the applicant company ] , which [ is ] trying to put pressure on ORG and the investor ... , constantly exaggerating its claims in the insolvency proceedings examined by ORG ... It will be extremely difficult for ORG to solve these problems without your intervention . In this connection , I ask you to support our team of employees and to instruct ORG and ORG of GPE to sort the situation out and to issue lawful decisions ” .

On DATE the President of GPE forwarded the above request to the ORG ’s President and to ORG with a note as follows :

“ Please sort this out and take decisions according to the legislation in force ” .

At the request of ORG , on DATE ORG reviewed the ORG ’s ruling of CARDINAL DATE under the supervisory review procedure and upheld the ruling , having found no grounds for the invalidation of ORG ’s contracts with the applicant company entered into in DATE and DATE , as well as the agreement of CARDINAL DATE on the repayment of arrears .

DATE . On DATE the ORG , at the request of ORG , reviewed the rulings of ORG and of the ORG of DATE concerning the amount of its outstanding debts vis - à - vis the applicant company on the basis of newly - discovered circumstances . The court considered that the agreement between the parties of DATE ( on which the earlier determination of the outstanding arrears had been based ) was to be considered in law as a contract of supply . However , it had not contained all the elements required for such a contract and thus had to be declared invalid . Furthermore , the court considered that the LOC committee had lost its powers on DATE , the effective date of amendments to the insolvency legislation envisaging new procedures for the creation and activities of NORP committees .

By the same ruling , the ORG established the final amount of the outstanding debts of ORG vis - à - vis the applicant company to be ORG CARDINAL,CARDINAL,CARDINAL , having noted that the earlier amounts established had been of a preliminary nature .

The applicant company appealed against the above ruling of the ORG , contending , inter alia , that the review and reduction of the amount of the arrears contradicted the final judicial decisions in that connection , which had become res judicata .

On DATE ORG ( the former ORG , as renamed in DATE ) transferred the insolvency case to ORG ( “ the Lugansk Commercial Court ” ) for further examination in line with amendments introduced to the legislation governing arbitration proceedings in DATE .

On DATE ORG returned the applicant company ’s appeal against the ORG ’s ruling of DATE to it , making reference to the transfer of the case to ORG on DATE .

DATE the applicant company introduced several applications with the ORG for access to the case files regarding the insolvency proceedings and the proceedings concerning its claims against ORG ( then called the Refinery ) lodged in DATE and DATE . By a letter of DATE the ORG informed the applicant company that the files relating to its claims brought in DATE and DATE had been destroyed , as the time - limit for their storage had expired . The applicant company was , however , given access to the case file concerning the insolvency proceedings . It complained to ORG and to the President of ORG about the destruction of the case files pertaining to the DATE and DATE claims and of irregularities in respect of the file concerning the insolvency proceedings ( lack of page numbering and inadequate numbering and inventory of contents ) . On DATE ORG informed the applicant company that it had brought the irregularities discovered in the case file with regard to the insolvency proceedings to the attention of the President of ORG .

On DATE ORG considered an appeal by the applicant company against the ORG ’s ruling of DATE . As a result , it changed the total of the outstanding arrears of ORG vis - à - vis the applicant company to ORG in debt and ORG CARDINAL in compensation for delayed repayment ( UAH CARDINAL in total ) .

On DATE ORG dismissed an appeal in cassation brought by the applicant company against the above - mentioned ruling of DATE .

On DATE ORG commenced the court - supervised restructuring of ORG .

On DATE ORG , sitting as a bench of CARDINAL judges , rejected the applicant company ’s request for leave to appeal in cassation against the rulings of DATE and DATE , having “ failed to come to an agreement as to the presence in this case of legal grounds for the institution of cassation proceedings before the ORG ” .

On DATE the creditors’ committee and the debtor signed a friendly settlement agreement , according to which the creditors’ claims were to be settled by exchanging them for the debtor ’s assets . The applicant company , in particular , was to receive CARDINAL shares owned by the debtor in the share capital of ORG in settlement of its claims ( equal to ORG CARDINAL,CARDINAL,CARDINAL ) . Its claims would also have been considered settled had it refused to accept the aforementioned shares .

On DATE ORG approved the above friendly settlement agreement , noting , inter alia , that the PERSON committee had voted for it unanimously . It declared the court - supervised restructuring of the debtor company complete and lifted the moratorium on settling the PERSON claims . The applicant company was not present at the hearing , although , as noted in the ruling of ORG of DATE ( see below ) , it had been duly notified of it .

The applicant company appealed against the above ruling , submitting , amongst other things , that it had had no opportunity to object to the friendly settlement agreement , that there had been no assessment of the value of the shares in ORG , and that it had not been established whether ORG had been authorised to repay its debts with the assets of the aforementioned company .

On DATE and DATE ORG and ORG , respectively , dismissed the applicant company ’s appeal and cassation appeal as unsubstantiated .

On DATE ORG rejected a further request by the applicant company for leave to appeal in cassation .

The relevant provisions can be found in PERSON v. GPE , no . MONEY , § CARDINAL , DATE ( independence of the judiciary ) , and in PERSON and Others v. GPE , no . CARDINAL , § DATE , CARDINAL DATE ( protection of property ) .

NORP The relevant provisions , as worded before the amendments of DATE ( effective since DATE ) , are quoted in GPE - Tyumen v. GPE , no . CARDINAL , § DATE .

Chapter PERSON ( in force since DATE ) can be found in MPP PERSON v. GPE ( dec . ) , no . CARDINAL/CARDINAL , ORG CARDINALXI .

Under LAW , final judicial decisions may be reviewed on the basis of newly - discovered circumstances , where those circumstances were of significant importance for the case and could not have been known to the party concerned . According to LAW , the examination of a request for the review of a case on the basis of newly - discovered circumstances should result in a court judgment ( ruling or resolution ) upholding the judgment ( ruling or resolution ) sought to be reviewed , modifying it or quashing it . The relevant decision may be challenged under standard procedure .

Under paragraph CARDINAL of the Final and Transitional Provisions , a judgment not challenged by the time of the entry into force of the LAW before the president of an arbitration court may be appealed against to the commercial court of appeal or cassation instance in compliance with the procedures envisaged by LAW .


The applicant is a NORP national , born in DATE and living in GPE . She is represented before the ORG by PERSON , a solicitor practising in PERSON .

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

The applicant , a gypsy born in GPE , started travelling at DATE when she married a gypsy who travelled . After the marriage ended , the applicant married PERSON , a romany gypsy who had travelled with his parents widely . During their travelling together , they and their CARDINAL children were moved on by the police many times for parking their caravan on the road side . They were frequently moved on DATE after DATE and escorted by the police outside the county .

In the DATE ’s , the applicant and her family found a pitch on an official site at GPE , GPE . Her children and their caravan were attacked by other gypsies , and there were quarrels between the applicant and other gypsy parents . She and her husband decided to move off the pitch . After DATE of travelling and making short term stays on gypsy sites , the applicant moved onto a private gypsy site in GPE , GPE , where they stayed for DATE . After this period , a new gypsy family moved onto the adjacent pitch , who were drunkards and kept the applicant and her family awake with brawls and quarrels . A neighbouring caravan was set on fire and another caravan vandalised . The applicant ’s husband grew very depressed and in DATE he developed a heart condition requiring quiet and rest .

After DATE looking for a piece of land on which to settle , they found an affordable site at LOC , GPE , GPE . This was close to the applicant ’s family and in a quiet lane full of mobile homes and adjacent to an official gypsy site . They purchased the site in DATE . A planning application was put in on DATE for CARDINAL mobile homes and CARDINAL tourers .

The application was refused by ORG ( ‘ the Council’ ) on DATE . An enforcement notice was issued on DATE . The applicant and her husband ’s appeal against the refusal of planning permission and the enforcement notice was heard by a planning inspector on CARDINAL and DATE .

In his decision letter of DATE , the inspector held inter alia :

“ CARDINAL . The site is located within the predominantly open countryside to the south of the settlement of ORG … It is irregular in shape and QUANTITY in extent . It adjoins a former chapel to the east , which is now used as a day care centre , and on its western side it adjoins a residential property , … and an open field . Opposite is a purpose built local authority gypsy site , ORG , and to the south east is the CARDINAL PERSON public house . It falls within LOC . …

NORP The site is clearly visible from both LOC and FAC …

You claim that the site is well - screened and does not intrude into the open countryside . To my mind , the number of caravans , structures , vehicles and trailers , etc . effectively urbanises the site and results in a material loss of openness . The use detracts from the visual amenity of the site . The land north of CARDINAL GPE is largely open . Development of the site intrudes into the open belt of land , south of ORG , and consolidates the sporadic development in GPE . It contributes to the coalescence of ORG and ORG . It involves an encroachment of residential use into the open countryside contrary to CARDINAL of the main purposes of LOC .

The site has a QUANTITY boundary with a private dwelling which is positioned close to the boundary . I consider that the occupants of the dwelling have experienced a material loss of amenity due to the loss of openness and increased noise and disturbance from the intensified activity on the site . ... There is evidence of on site business activities . The appeal site consolidates gypsy site provision in the locality and extends the use on both sides of LOC . The change of use results in an ad hoc extension to the consciously located official gypsy site opposite . It has resulted in loss of natural features and does not complement and harmonise with the local surroundings contrary to policy ORG . In my view the use diminishes the rural quality of the landscape in this area .

NORP … There are CARDINAL purpose built gypsy sites in the district and CARDINAL authorised sites . The ORG claims that statistical evidence does not demonstrate a continuing or compelling need for further provision in the district , either permanent , temporary or transit . I note that a Designation Order for the district was made by the Secretary of ORG in DATE as an area to which section CARDINAL of LAW DATE applied . On the basis of official counts taken twice a year , the level of need in the district in DATE has been very low …

The ORG site opposite has recently been upgraded and accommodates CARDINAL families . The other ORG site , PERSON , accommodates CARDINAL families . There are CARDINAL other local authority sites within GPE . The current waiting list for ORG is CARDINAL but there are CARDINAL vacancies at the PERSON site . < The applicant ’s husband > voluntarily moved to the site from an official gypsy site at GPE , GPE . He has no local connections in ORG or ORG or particular links with GPE . …

< The applicant ’s husband > has a heart condition and is on pills for life , he had gout and a back problem … I appreciate that he needs a more peaceful and settled existence . Nevertheless , the site is not within easy reach of medical and pharmacy services . < He > is able to undertake some light work , such as erecting fencing and is able to drive ; I am not persuaded that his medical condition amounts to such very special circumstances which would justify a breach of LOC policy .

< The applicant ’s husband > approached other travellers to find a site and made informal inquiries about vacancies on the ORG site . His preference to live with his son complicates availability . He did not consult with the ORG before he bought the site ... the evidence indicates that the ORG made every effort , both in writing and by personal visits , to inform < him > that planning permission was needed and that approval would be unlikely due to the site ’s LOC status . …

The objections to the development in LOC are serious ones which can not be overcome by the imposition of planning conditions such as landscaping … The public interest can only be safeguarded by the cessation of the use ... ”

The Inspector granted a compliance period of DATE in recognition that it might take some considerable time for a vacancy to be found on an appropriate site elsewhere .

Counsel advised that there was no error of law on which the applicant and her husband could appeal to ORG . He did consider that the inspector had made an errors of fact , in particular , in setting out the local council criteria for gypsy sites . However , this did not assist the applicant as it was clear from the rest of the decision that the inspector would have found that the relevant criteria had not been met and would have reached the same result .

In DATE , the Secretary of ORG for the Environment approved the local plan for GPE . This identified specific sites for CARDINAL dwellings , planned to identify a further CARDINAL dwelling sites and failed to identify a single site for gypsies . The local authority had zoned all rural land as LOC , excluding QUANTITY of quarries unsuitable for human habitation . Residential and agricultural land in the area was valued at QUANTITY .

In or DATE , the applicant ’s husband was convicted of being in breach of an enforcement notice and fined CARDINAL GBP . He lodged a further application for planning permission which was dismissed after a public enquiry at a date unspecified .

ORG as amended by ORG DATE ) ( “ the DATE LAW ) consolidated pre - existing planning law . It provides that planning permission is required for the carrying out of any development of land ( section CARDINAL of LAW ) . A change in the use of land for the stationing of caravans can constitute a development ( ORG v. Secretary of ORG for the Environment and GPE [ DATE ] ORG Law CARDINAL ; PERSON v. Secretary of ORG for the Environment and South Hertfordshire District Council [ DATE ] ORG ) .

An application for planning permission must be made to the local planning authority , which has to determine the application in accordance with the local development plan , unless material considerations indicate otherwise ( section CARDINALA of LAW ) .

The DATE Act provides for an appeal to the Secretary of ORG in the event of a refusal of permission ( section CARDINAL ) . With immaterial exceptions , the Secretary of ORG must , if either the appellant or the authority so desire , give each of them the opportunity of making representations to an inspector appointed by the Secretary of ORG . It is established practice that each inspector must exercise independent judgment and must not be subject to any improper influence ( see the PERSON the GPE judgment of CARDINAL DATE , Series A no . CARDINAL-A , p. CARDINAL , § DATE ) . There is a further appeal to ORG on the ground that the Secretary of ORG ’s decision was not within the powers conferred by LAW , or that the relevant requirements of LAW were not complied with ( section FAC ) .

If a development is carried out without the grant of the required planning permission , the local authority may issue an “ enforcement notice ” if it considers it expedient to do so having regard to the provisions of the development plan and to any other material considerations ( section CARDINAL ( CARDINAL ) of LAW ) .

There is a right of appeal against an enforcement notice to the Secretary of ORG on the grounds , inter alia , that planning permission ought to be granted for the development in question ( section CARDINAL ) . As with the appeal against refusal of permission , the Secretary of ORG must give each of the parties the opportunity of making representations to an inspector .

Again there is a further right of appeal “ on a point of law ” to ORG against a decision of the Secretary of ORG under section CARDINAL ( section CARDINAL ) . Such an appeal may be brought on grounds identical to an application for judicial review . It therefore includes a review as to whether a decision or inference based on a finding of fact is perverse or irrational ( NORP v. Secretary of ORG for ORG , ex parte PERSON [ DATE ] Appeal Cases CARDINAL , CARDINAL ORG ) . ORG will also grant a remedy if the inspector ’s decision was such that there was no evidence to support a particular finding of fact ; or the decision was made by reference to irrelevant factors or without regard to relevant factors ; or made for an improper purpose , in a procedurally unfair manner or in a manner which breached any governing legislation or statutory instrument . However , the court of review can not substitute its own decision on the merits of the case for that of the decision - making authority .

Where any steps required by an enforcement notice to be taken are not taken within the period for compliance with the notice , the local authority may enter the land and take the steps and recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so ( section CARDINAL of LAW ) .

The purpose of ORG and the operation of the policy to protect them is set out in the national policy document FAC ( DATE ) .

“ CARDINAL . The Government attaches great importance to GPE , which have been an essential element of planning policy for DATE . …

The fundamental aim of LOC policy is to prevent urban sprawl by keeping land permanently open ; the most important attribute of ORG is their openness . Green Belts can shape patterns of urban development at sub - regional and regional scale , and help to ensure that development occurs in locations allocated in development plans . They help to protect the countryside , be it in agricultural , forestry or other use . They can assist in moving towards more sustainable patterns of urban development .

There are CARDINAL purposes in GPE :

– to check the unrestricted sprawl of large built - up areas ;

– to prevent neighbouring towns from merging into one another ;

– to assist in safeguarding the countryside from encroachment ;

– to preserve the setting and special character of historic towns ; and

– to assist in urban regeneration by encouraging the recycling of derelict and other urban land . …

NORP The essential characteristic of GPE is their permanence . Their protection must be maintained as far as can be seen ahead . …

The general policies controlling development in the countryside apply with equal force in Green Belts but there is , in addition , a general presumption against inappropriate development within them . Such development should not be approved , except in very special circumstances . …

Inappropriate development is , by definition , harmful to LOC . It is for the applicant to show why permission should be granted . Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness , and any other harm , is clearly outweighed by other considerations . In view of the presumption against inappropriate development , the Secretary of ORG will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development . ”


CASE OF S. AND MARPER v. THE UNITED KINGDOM

Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

Anatoly Kovler;Christos Rozakis;Corneliu Bîrsan;Egbert Myjer;Françoise Tulkens;Giovanni Bonello;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Kristaq Traja;Ledi Bianku;Mark Villiger;Nicolas Bratza;Päivi Hirvelä;Peer Lorenzen;Stanislav Pavlovschi

The applicants were born in DATE and DATE respectively and live in GPE .

The first applicant , Mr S. , was arrested on DATE at DATE and charged with attempted robbery . His fingerprints and DNA samples were taken . He was acquitted on DATE .

The second applicant , Mr PERSON , was arrested on DATE and charged with harassment of his partner . His fingerprints and DNA samples were taken . Before a pre - trial review took place , he and his partner had reconciled , and the charge was not pressed . On DATE , ORG served a notice of discontinuance on the applicant ’s solicitors , and on DATE the case was formally discontinued .

Both applicants asked for their fingerprints and DNA samples to be destroyed , but in both cases the police refused . The applicants applied for judicial review of the police decisions not to destroy the fingerprints and samples . On DATE ORG ( ORG and ORG ) rejected the application [ [ DATE ] EWHC CARDINAL ( Admin ) ] .

On DATE ORG upheld the decision of ORG by a majority of CARDINAL ( Lord PERSON and PERSON ) to CARDINAL ( ORG ) [ [ DATE ] EWCA Civ CARDINAL ] . As regards the necessity of retaining DNA samples , Lord Justice PERSON stated :

“ ... [ F]ingerprints and DNA profiles reveal only limited personal information . The physical samples potentially contain very much greater and more personal and detailed information . The anxiety is that science may DATE enable analysis of samples to go so far as to obtain information in relation to an individual ’s propensity to commit certain crime and be used for that purpose within the language of the present section [ section CARDINAL of ORG and LAW DATE ] . It might also be said that the law might be changed in order to allow the samples to be used for purposes other than those identified by the section . It might also be said that while samples are retained there is even now a risk that they will be used in a way that the law does not allow . So , it is said , the aims could be achieved in a less restrictive manner ... Why can not the aim be achieved by retention of the profiles without retention of the samples ?

The answer to [ these ] points is as I see it as follows . First the retention of samples permits ( a ) the checking of the integrity and future utility of the DNA database system ; ( b ) a reanalysis for the upgrading of DNA profiles where new technology can improve the discriminating power of the DNA matching process ; ( c ) reanalysis and thus an ability to extract other DNA markers and thus offer benefits in terms of speed , sensitivity and cost of searches of the database ; ( d ) further analysis in investigations of alleged miscarriages of justice ; and ( e ) further analysis so as to be able to identify any analytical or process errors . It is these benefits which must be balanced against the risks identified by ORG . In relation to those risks , the position in any event is first that any change in the law will have to be itself Convention compliant ; second any change in practice would have to be Convention compliant ; and third unlawfulness must not be assumed . In my view thus the risks identified are not great , and such as they are they are outweighed by the benefits in achieving the aim of prosecuting and preventing crime . ”

Lord Justice PERSON considered that the power of a chief constable to destroy data which he would ordinarily retain had to be exercised in every case , however rare such cases might be , where he or she was satisfied on conscientious consideration that the individual was free of any taint of suspicion . He also noted that the difference between the retention of samples and DNA profiles was that the retention of samples would enable more information to be derived than had previously been possible .

On DATE ORG dismissed an appeal by the applicants . Lord PERSON , giving the lead judgment , noted the legislative history of section CARDINAL(CARDINALA ) of LAW ( PACE ) , in particular the way in which it had been introduced by ORG following public disquiet about the previous law , which had provided that where a person was not prosecuted or was acquitted of offences , the sample had to be destroyed and the information could not be used . In CARDINAL cases , compelling DNA evidence linking CARDINAL suspect to a rape and another to a murder had not been able to be used , as at the time the matches were made both defendants had either been acquitted or a decision made not to proceed for the offences for which the profiles had been obtained : as a result it had not been possible to convict either suspect .

Lord PERSON noted that the value of retained fingerprints and samples taken from suspects was considerable . He gave the example of a case in DATE , in which DNA information from the perpetrator of a crime was matched with that of “ I ” in a search of the national database . The sample from “ I ” should have been destroyed , but had not been . “ I ” had pleaded guilty to rape and was sentenced . If the sample had not been wrongly detained , the offender might have escaped detection .

Lord PERSON also referred to statistical evidence from which it appeared that CARDINAL DNA profiles had been linked with crime - scene stain profiles which would have been destroyed under the former provisions . The offences involved included CARDINAL murders , CARDINAL attempted murders , CARDINAL rapes , CARDINAL sexual offences , CARDINAL aggravated burglaries and CARDINAL cases involving the supply of controlled drugs . On the basis of the existing records , ORG statistics estimated that there was a PERCENT chance that a crime - scene sample would be matched immediately with an individual ’s profile on the national database . This showed that the fingerprints and samples which could now be retained had in DATE played a major role in the detection and prosecution of serious crime .

Lord PERSON also noted that PACE dealt separately with the taking of fingerprints and samples , their retention and their use .

As to the Convention analysis , Lord PERSON inclined to the view that the mere retention of fingerprints and DNA samples did not constitute an interference with the right to respect for private life but stated that , if he were wrong in that view , he regarded any interference as very modest indeed . Questions of whether , in the future , retained samples could be misused were not relevant in respect of contemporary use of retained samples in connection with the detection and prosecution of crime . If future scientific developments required it , judicial decisions could be made , when the need occurred , to ensure compatibility with the LAW . The provision limiting the permissible use of retained material to “ purposes related to the prevention or detection of crime ... ” did not broaden the permitted use unduly , because it was limited by its context .

If the need to justify the modest interference with private life arose , Lord PERSON agreed with Lord Justice PERSON in ORG that the purposes of retention – the prevention of crime and the protection of the right of others to be free from crime – were “ provided for by law ” , as required by LAW .

As to the justification for any interference , the applicants had argued that the retention of fingerprints and DNA samples created suspicion in respect of persons who had been acquitted . Counsel for the Home Secretary had contended that the aim of the retention had nothing to do with the past , that is , with the offence of which a person had been acquitted , but was to assist in the investigation of offences in the future . The applicants would only be affected by the retention of the DNA samples if their profiles matched those found at the scene of a future crime . Lord PERSON saw CARDINAL factors which led to the conclusion that the interference was proportionate to the aim : ( i ) the fingerprints and samples were kept only for the limited purpose of the detection , investigation and prosecution of crime ; ( ii ) the fingerprints and samples were not of any use without a comparator fingerprint or sample from the crime scene ; ( iii ) the fingerprints would not be made public ; ( iv ) a person was not identifiable from the retained material to the untutored eye ; ( v ) the resultant expansion of the national database by the retention conferred enormous advantages in the fight against serious crime .

In reply to the contention that the same legislative aim could be obtained by less intrusive means , namely by a case - by - case consideration of whether or not to retain fingerprints and samples , Lord PERSON referred to Lord Justice PERSON ’s comments in ORG , which read as follows :

“ If justification for retention is in any degree to be by reference to the view of the police on the degree of innocence , then persons who have been acquitted and have their samples retained can justifiably say this stigmatises or discriminates against me – I am part of a pool of acquitted persons presumed to be innocent , but I am treated as though I was not . It is not in fact in any way stigmatising someone who has been acquitted to say simply that samples lawfully obtained are retained as the norm , and it is in the public interest in its fight against crime for the police to have as large a database as possible . ”

Lord PERSON did not accept that the difference between samples and DNA profiles affected the position .

ORG further rejected the ORG complaint that the retention of their fingerprints and samples subjected them to discriminatory treatment in breach of LAW when compared to the general body of persons who had not had their fingerprints and samples taken by the police in the course of a criminal investigation . Lord PERSON held that , even assuming that the retention of fingerprints and samples fell within the ambit of LAW so as to trigger the application of LAW , the difference of treatment relied on by the applicants was not one based on “ status ” for the purposes of LAW simply reflected the historical fact , unrelated to any personal characteristic , that the authorities already held the fingerprints and samples of the individuals concerned which had been lawfully taken . The applicants and their suggested comparators could not in any event be said to be in an analogous situation . Even if , contrary to his view , it was necessary to consider the justification for any difference in treatment , Lord PERSON held that such objective justification had been established : TIME , the element of legitimate aim was plainly present , as the increase in the database of fingerprints and samples promoted the public interest by the detection and prosecution of serious crime and by exculpating the innocent ; secondly , the requirement of proportionality was satisfied , section CARDINAL(CARDINALA ) of PACE objectively representing a measured and proportionate response to the legislative aim of dealing with serious crime .

Baroness PERSON of GPE disagreed with the majority , considering that the retention of both fingerprint and DNA data constituted an interference by the ORG in a person ’s right to respect for his private life and thus required justification under the ORG . In her opinion , this was an aspect of what had been called informational privacy and there could be little , if anything , more private to the individual than the knowledge of his genetic make - up . She further considered that the difference between fingerprint and DNA data became more important when it came to justify their retention as the justifications for each of these might be very different . She agreed with the majority that such justifications had been readily established in the ORG cases .

PACE contains powers for the taking of fingerprints ( principally section CARDINAL ) and samples ( principally section CARDINAL ) . By section CARDINAL , fingerprints may only be taken without consent if an officer of at least the rank of superintendent authorises the taking , or if the person has been charged with a recordable offence or has been informed that he will be reported for such an offence . Before fingerprints are taken , the person must be informed that the prints may be the subject of a speculative search , and the fact of the informing must be recorded as soon as possible . The reason for the taking of the fingerprints is recorded in the custody record . Parallel provisions relate to the taking of samples ( section CARDINAL ) .

As to the retention of such fingerprints and samples ( and the records thereof ) , section CARDINAL(CARDINALA ) of PACE was substituted by section CARDINAL of ORG and LAW DATE . It provides as follows :

“ Where ( a ) fingerprints or samples are taken from a person in connection with the investigation of an offence ; and ( b ) subsection ( CARDINAL ) below does not require them to be destroyed , the fingerprints or samples may be retained after they have fulfilled the purposes for which they were taken but shall not be used by any person except for purposes related to the prevention or detection of crime , the investigation of an offence , or the conduct of a prosecution . ...

( CARDINAL ) NORP If ( a ) fingerprints or samples are taken from a person in connection with the investigation of an offence ; and ( b ) that person is not suspected of having committed the offence , they must , except as provided in the following provisions of this section , be destroyed as soon as they have fulfilled the purpose for which they were taken .

( CARDINALAA ) Samples and fingerprints are not required to be destroyed under subsection ( CARDINAL ) above if ( a ) they were taken for the purposes of the investigation of an offence of which a person has been convicted ; and ( b ) a sample or , as the case may be , fingerprint was also taken from the convicted person for the purposes of that investigation . ”

Section CARDINAL in its earlier form had included a requirement that if the person from whom the fingerprints or samples were taken in connection with the investigation was acquitted of that offence , the fingerprints and samples , subject to certain exceptions , were to be destroyed “ as soon as practicable after the conclusion of the proceedings ” .

The subsequent use of materials retained under section CARDINAL(CARDINALA ) is not regulated by statute , other than the limitation on use contained in that provision . In Attorney - General ’s Reference ( No . DATE ) [ DATE ] CARDINAL AC CARDINAL , ORG had to consider whether it was permissible to use in evidence a sample which should have been destroyed under the then text of CARDINAL of PACE . The ORG considered that the prohibition on the use of an unlawfully retained sample “ for the purposes of any investigation ” did not amount to a mandatory exclusion of evidence obtained as a result of a failure to comply with the prohibition , but left the question of admissibility to the discretion of the trial judge .

LAW was adopted on DATE to give effect to Directive CARDINAL of ORG and of ORG see paragraph CARDINAL below ) . Under LAW “ personal data ” means data which relate to a living individual who can be identified ( a ) from those data ; or ( b ) from those data and other information which is in the possession of , or is likely to come into the possession of , the data controller , and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual ( section CARDINAL ) . “ Sensitive personal data ” means personal data consisting , inter alia , of information as to the racial or ethnic origin of the data subject , the commission or alleged commission by him of any offence , or any proceedings for any offence committed or alleged to have been committed by him , the disposal of such proceedings or the sentence of any court in such proceedings ( section CARDINAL ) .

The Act stipulates that the processing of personal data is subject to CARDINAL data protection principles listed in Schedule CARDINAL . Under the first principle personal data shall be processed fairly and lawfully and , in particular , shall not be processed unless ( a ) CARDINAL of the conditions in Schedule CARDINAL is met ; and ( b ) in case of sensitive personal data , CARDINAL of the conditions in Schedule CARDINAL is also met . Schedule CARDINAL contains a detailed list of conditions , and provides , inter alia , that the processing of any personal data is necessary for the administration of justice or for the exercise of any other functions of a public nature exercised in the public interest by any person ( § CARDINAL ( a ) and ( d ) ) . Schedule CARDINAL contains a more detailed list of conditions , including that the processing of sensitive personal data is necessary for the purpose of , or in connection with , any legal proceedings ( § CARDINAL ( a ) ) , or for the administration of justice ( § CARDINAL ( a ) ) , and is carried out with appropriate safeguards for the rights and freedoms of data subjects ( § CARDINAL ( b ) ) . Section CARDINAL notably provides that personal data processed for the prevention or detection of crime are exempt from the first principle except to the extent to which it requires compliance with the conditions in Schedules CARDINAL . The fifth principle stipulates that personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes .

The Information Commissioner created pursuant to the LAW ( as amended ) has an independent duty to promote the following of good practice by data controllers and has power to make orders ( “ enforcement notices ” ) in this respect ( section CARDINAL ) . The LAW makes it a criminal offence not to comply with an enforcement notice ( section CARDINAL ) or to obtain or disclose personal data or information contained therein without the consent of the data controller ( section DATE ) . LAW affords a right to claim damages in the domestic courts in respect of contraventions of the LAW .

A set of guidelines for the retention of fingerprint and DNA information is contained in LAW on ORG drawn up by ORG in GPE and GPE . The LAW are based on a format of restricting access to ORG ( ORG ) data , rather than the deletion of that data . They recognise that their introduction may thus have implications for the business of the non - police agencies with which the police currently share ORG data .

The Guidelines set various degrees of access to the information contained on the ORG through a process of “ stepping down ” access . Access to information concerning persons who have not been convicted of an offence is automatically “ stepped down ” so that this information is only open to inspection by the police . Access to information about convicted persons is likewise “ stepped down ” after the expiry of certain periods of time ranging from CARDINAL thirty - five years , depending on the gravity of the offence , the age of the suspect and the sentence imposed . For certain convictions the access will never be “ stepped down ” .

Chief police officers are the data controllers of all ORG records created by their force . They have the discretion in exceptional circumstances to authorise the deletion of any conviction , penalty notice for disorder , acquittal or arrest histories “ owned ” by them . An “ exceptional case procedure ” to assist chief police officers in relation to the exercise of this discretion is set out in DATE . It is suggested that exceptional cases are rare by definition and include those where the original arrest or sampling was unlawful or where it is established beyond doubt that no offence existed . Before deciding whether a case is exceptional , the chief police officer is instructed to seek advice from the DNA and ORG .

Under LAW of GPE , as subsequently amended , the DNA samples and resulting profiles must be destroyed if the individual is not convicted or is granted an absolute discharge . A recent qualification provides that biological samples and profiles may be retained for DATE , if the arrestee is suspected of certain sexual or violent offences even if a person is not convicted ( section CARDINAL of LAW , adding section CARDINALA to LAW . ) . Thereafter , samples and information are required to be destroyed unless a chief constable applies to a sheriff for a DATE extension .

The Police and Criminal Evidence Order of Northern Ireland DATE was amended in DATE in the same way as PACE applicable in GPE and GPE . The relevant provisions currently governing the retention of fingerprint and DNA data in GPE are identical to those in force in GPE and GPE ( see paragraph CARDINAL above ) .

According to a recent report by ORG , the retention of fingerprints , DNA profiles and biological samples is generally more controversial than the taking of such bioinformation , and the retention of biological samples raises greater ethical concerns than digitised DNA profiles and fingerprints , given the differences in the level of information that could be revealed . The report referred , in particular , to the lack of satisfactory empirical evidence to justify the present practice of retaining indefinitely fingerprints , samples and DNA profiles from all those arrested for a recordable offence , irrespective of whether they were subsequently charged or convicted . The report voiced particular concerns at the policy of permanently retaining the bioinformation of minors , having regard to the requirements of the DATE LAW on the Rights of the Child .

The report also expressed concerns at the increasing use of the DNA data for familial searching , inferring ethnicity and non - operational research . Familial searching is the process of comparing a DNA profile from a crime scene with profiles stored on the national database , and prioritising them in terms of “ closeness ” to a match . This allows possible genetic relatives of an offender to be identified . Familial searching might thus lead to revealing previously unknown or concealed genetic relationships . The report considered the use of the DNA database in searching for relatives as particularly sensitive .

NORP The particular combination of alleles in a DNA profile can furthermore be used to assess the most likely ethnic origin of the donor . Ethnic inferring through DNA profiles is possible as the individual “ ethnic appearance ” is systematically recorded on the database : when taking biological samples , police officers routinely classify suspects into CARDINAL of CARDINAL “ ethnic appearance ” categories . Ethnicity tests on the database might thus provide inferences for use during a police investigation in order , for example , to help reduce a “ suspect pool ” and to inform police priorities . The report noted that social factors and policing practices lead to a disproportionate number of people from black and ethnic minority groups being stopped , searched and arrested by the police , and hence having their DNA profiles recorded ; it therefore voiced concerns that inferring ethnic identity from biological samples might reinforce racist views of propensity to criminality .

ORG of DATE for the protection of individuals with regard to automatic processing of personal data ( “ the LAW ” ) , which entered into force for GPE on DATE , defines “ personal data ” as any information relating to an identified or identifiable individual ( “ data subject ” ) . The ORG provides , inter alia :

“ Personal data undergoing automatic processing shall be

( b ) stored for specified and legitimate purposes and not used in a way incompatible with those purposes ;

( c ) adequate , relevant and not excessive in relation to the purposes for which they are stored ;

( e ) NORP preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored . ”

“ Personal data revealing racial origin , political opinions or religious or other beliefs , as well as personal data concerning health or sexual life , may not be processed automatically unless domestic law provides appropriate safeguards . ... ”

“ Appropriate security measures shall be taken for the protection of personal data stored in automated data files against accidental or unauthorised destruction or accidental loss as well as against unauthorised access , alteration or dissemination . ”

Recommendation No . R ( CARDINAL ) CARDINAL of ORG regulating the use of personal data in the police sector ( adopted on CARDINAL DATE ) states , inter alia :

“ CARDINAL . The collection of personal data for police purposes should be limited to such as is necessary for the prevention of a real danger or the suppression of a specific criminal offence . Any exception to this provision should be the subject of specific national legislation .

“ CARDINAL . As far as possible , the storage of personal data for police purposes should be limited to accurate data and to such data as are necessary to allow police bodies to perform their lawful tasks within the framework of national law and their obligations arising from international law .

“ CARDINAL . Measures should be taken so that personal data kept for police purposes are deleted if they are no longer necessary for the purposes for which they were stored .

For this purpose , consideration shall in particular be given to the following criteria : the need to retain data in the light of the conclusion of an inquiry into a particular case ; a final judicial decision , in particular an acquittal ; rehabilitation ; spent convictions ; amnesties ; the age of the data subject , particular categories of data . ”

Recommendation No . R ( CARDINAL ) CARDINAL of ORG on the use of analysis of deoxyribonucleic acid ( DNA ) within the framework of the criminal justice system ( adopted on DATE ) states , inter alia :

“ CARDINAL . Use of samples and information derived therefrom

Samples collected for DNA analysis and the information derived from such analysis for the purpose of the investigation and prosecution of criminal offences must not be used for other purposes . ...

Samples taken for DNA analysis and the information so derived may be needed for research and statistical purposes . Such uses are acceptable provided the identity of the individual can not be ascertained . Names or other identifying references must therefore be removed prior to their use for these purposes .

Taking of samples for DNA analysis

The taking of samples for DNA analysis should only be carried out in circumstances determined by the domestic law ; it being understood that in some states this may necessitate specific authorisation from a judicial authority .

Storage of samples and data

Samples or other body tissue taken from individuals for DNA analysis should not be kept after the rendering of the final decision in the case for which they were used , unless it is necessary for purposes directly linked to those for which they were collected .

Measures should be taken to ensure that the results of DNA analysis are deleted when it is no longer necessary to keep it for the purposes for which it was used . The results of DNA analysis and the information so derived may , however , be retained where the individual concerned has been convicted of serious offences against the life , integrity or security of persons . In such cases strict storage periods should be defined by domestic law .

Samples and other body tissues , or the information derived from them , may be stored for longer periods

– when the person so requests ; or

– when the sample can not be attributed to an individual , for example when it is found at the scene of an offence .

Where the security of the state is involved , the domestic law of the member ORG may permit retention of the samples , the results of DNA analysis and the information so derived even though the individual concerned has not been charged or convicted of an offence . In such cases strict storage periods should be defined by domestic law .

The Explanatory Memorandum to the ORG stated , as regards item CARDINAL :

“ CARDINAL . The working party was well aware that the drafting of recommendation CARDINAL was a delicate matter , involving different protected interests of a very difficult nature . It was necessary to strike the right balance between these interests . Both LAW and LAW provide exceptions for the interests of the suppression of criminal offences and the protection of the rights and freedoms of third parties . However , the exceptions are only allowed to the extent that they are compatible with what is necessary in a NORP society .

Since the primary aim of the collection of samples and the carrying out of DNA analysis on such samples is the identification of offenders and the exoneration of suspected offenders , the data should be deleted once persons have been cleared of suspicion . The issue then arises as to how long the DNA findings and the samples on which they were based can be stored in the case of a finding of guilt .

The general rule should be that the data are deleted when they are no longer necessary for the purposes for which they were collected and used . This would in general be the case when a final decision has been rendered as to the culpability of the offender . By ‘ final LOC the ORG [ ORG ] thought that this would normally , under domestic law , refer to a judicial decision . However , the working party recognised that there was a need to set up databases in certain cases and for specific categories of offences which could be considered to constitute circumstances warranting another solution , because of the seriousness of the offences . The working party came to this conclusion after a thorough analysis of the relevant provisions in ORG , LAW and other legal instruments drafted within the framework of ORG . In addition , the working party took into consideration that all member States keep a criminal record and that such record may be used for the purposes of the criminal justice system ... It took into account that such an exception would be permissible under certain strict conditions :

– when there has been a conviction ;

– when the conviction concerns a serious criminal offence against the life , integrity and security of a person ;

– the storage period is limited strictly ;

– the storage is defined and regulated by law ;

– the storage is subject to control by ORG or an independent supervisory body . ”

According to the information provided by the parties or otherwise available to the ORG , a majority of ORG member GPE allow the compulsory taking of fingerprints and cellular samples in the context of criminal proceedings . CARDINAL member GPE make provision for the taking of DNA information and storing it on national databases or in other forms ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE , GPE , GPE and GPE ) . This number is steadily increasing .

In most of these countries ( including GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE , GPE and GPE ) , the taking of DNA information in the context of criminal proceedings is not systematic but limited to some specific circumstances and/or to more serious crimes , notably those punishable by certain terms of imprisonment .

GPE is the only member ORG expressly to permit the systematic and indefinite retention of DNA profiles and cellular samples of persons who have been acquitted or in respect of whom criminal proceedings have been discontinued . MONEY ( GPE , GPE , GPE , GPE and GPE ) require such information to be destroyed ex officio upon acquittal or the discontinuance of the criminal proceedings . CARDINAL other member GPE apply the same general rule with certain very limited exceptions : GPE , GPE and the GPE allow such information to be retained where suspicions remain about the person or if further investigations are needed in a separate case ; GPE permits its retention where there is a risk that the suspect will commit a dangerous offence and GPE does likewise in relation to certain serious crimes ; GPE and GPE allow the retention of profiles if the defendant is acquitted for lack of criminal accountability ; GPE and GPE allow retention for DATE respectively in the event of an acquittal and GPE for DATE when proceedings have been discontinued . In GPE , DNA profiles can be retained for DATE after an acquittal or discharge ; during this period the public prosecutor may order their earlier deletion , either on his or her own motion or upon request , if their retention has ceased to be required for the purposes of identification in connection with a criminal investigation . GPE and GPE also appear to allow the retention of DNA profiles of suspects for certain periods after acquittal .

The retention of DNA profiles of convicted persons is allowed , as a general rule , for limited periods of time after the conviction or after the convicted person ’s death . GPE thus also appears to be the only member ORG expressly to allow the systematic and indefinite retention of both profiles and samples of convicted persons .

Complaint mechanisms before data - protection monitoring bodies and/or before courts are available in most of the member GPE with regard to decisions to take cellular samples or retain samples or DNA profiles .

Directive CARDINAL of DATE on the protection of individuals with regard to the processing of personal data and on the free movement of such data provides that the object of national laws on the processing of personal data is notably to protect the right to privacy as recognised both in LAW and in the general principles of Community law . The Directive sets out a number of principles in order to give substance to and amplify those contained in LAW . It allows member GPE to adopt legislative measures to restrict the scope of certain obligations and rights provided for in the Directive when such a restriction constitutes notably a necessary measure for the prevention , investigation , detection and prosecution of criminal offences ( LAW ) .

The Prüm Convention on the stepping up of cross - border cooperation , particularly in combating terrorism , cross - border crime and illegal migration , which was signed by several member States of ORG on DATE , sets out rules for the supply of fingerprinting and DNA data to other Contracting Parties and their automated checking against their relevant databases . The ORG provides , inter alia :

“ CARDINAL . ... ORG administering the file may process the data supplied ... solely where this is necessary for the purposes of comparison , providing automated replies to searches or recording ... The supplied data shall be deleted immediately following data comparison or automated replies to searches unless further processing is necessary for the purposes mentioned ... above . ”

Article CARDINAL guarantees a level of protection of personal data at least equal to that resulting from ORG and requires the Contracting Parties to take into account Recommendation No . R ( CARDINAL ) CARDINAL of ORG .

The ORG framework decision of DATE on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters states , inter alia :

“ Establishment of time - limits for erasure and review

Appropriate time - limits shall be established for the erasure of personal data or for a periodic review of the need for the storage of the data . Procedural measures shall ensure that these time - limits are observed . ”

In the case of NORP v. PERSON [ [ DATE ] CARDINAL SCR DATE SCC CARDINAL ] ORG considered the issue of retaining a juvenile first - time offender ’s DNA sample on the national database . The court upheld the decision by a trial judge who had found , in the light of the principles and objects of youth criminal justice legislation , that the impact of the DNA retention would be grossly disproportionate . In his opinion , PERSON observed :

“ Of more concern , however , is the impact of an order on an individual ’s informational privacy interests . In NORP v. Plant , [ DATE ] CARDINAL S.C.R. CARDINAL , at p. CARDINAL , the ORG found that section CARDINAL of the LAW protected the ‘ biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the ORG . An individual ’s DNA contains the ‘ highest level of personal and private information’ : S.A.B. , at paragraph CARDINAL . Unlike a fingerprint , it is capable of revealing the most intimate details of a person ’s biological make - up . ... The taking and retention of a DNA sample is not a trivial matter and , absent a compelling public interest , would inherently constitute a grave intrusion on the subject ’s right to personal and informational privacy . ”

Article CARDINAL of LAW on the Rights of the Child of DATE states the right of every child alleged as , accused of , or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child ’s sense of dignity and worth , which reinforces the child ’s respect for the human rights and fundamental freedoms of others and which takes into account the child ’s age and the desirability of promoting the child ’s reintegration and the child ’s assuming a constructive role in society .

ORG ( “ Liberty ” ) submitted case - law and scientific material highlighting , inter alia , the highly sensitive nature of cellular samples and DNA profiles and the impact on private life arising from their retention by the authorities .

Privacy International referred to certain core data - protection rules and principles developed by ORG and insisted on their high relevance for the interpretation of the proportionality requirement enshrined in LAW . It emphasised , in particular , the “ strict periods ” recommended by Recommendation No . R ( CARDINAL ) CARDINAL of ORG for the storage of cellular samples and DNA profiles . It further pointed out a disproportionate representation on ORG of certain groups of the population , notably youth , and the unfairness that that situation might create . The use of data for familial testing and additional research purposes was also of concern . ORG also provided a summary of comparative data on the law and practice of different countries with regard to DNA storage and stressed the numerous restrictions and safeguards which existed in that respect .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE .

The applicant is a retired military serviceman entitled to a pension allowance . He questioned the accuracy of the method employed for calculation of his pension .

On DATE the applicant brought a civil action against his former employer , a local commissariat of ORG of GPE , claiming recalculation of his pension from DATE . He insisted on employing a particular method of recalculation .

On DATE the ORG of GPE granted his claims in part and ordered the recalculation of the pension for the period DATE and DATE . In particular , the court ordered an increase in the amount due and the payment of the arrears . The method employed for the recalculation differed from the CARDINAL sought by the applicant , which provided for a more significant increase .

On DATE the applicant appealed against the judgment claiming that the first - instance court had wrongfully applied domestic law .

On DATE ORG dismissed the appeal and upheld the first - instance judgment in full .