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

David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicants , PERSON ( “ the first applicant ” ) and PERSON ( “ the second applicant ” ) , were born in DATE and DATE respectively and live in GPE .

On DATE the first applicant gave birth to the second applicant , born out of wedlock .

On DATE ORG in GPE ruled that PERSON , from GPE , was the father of the second applicant and ordered him to pay child maintenance .

On DATE ORG ( Okružni sud ) in GPE ) confirmed ( priznao ) the decision of ORG . It would appear that enforcement of this judgment has never been sought .

On an unspecified date the second applicant instituted proceedings against PERSON seeking child maintenance . As she was a minor at the time she was represented by the first applicant as her legal guardian .

On DATE ORG ( PERSON ) in PERSON issued a judgment ordering PERSON ( hereinafter “ the debtor ” ) to pay MONEY ( YUD ) for the maintenance accrued DATE and DATE , with statutory interest , plus ORG CARDINAL for the costs of proceedings . This judgment became final on DATE .

On DATE ORG ( PERSON ) in ORG ) issued an enforcement order ( rješenje o izvršenju ) providing that the amount due would be paid by the sale of the debtor ’s movable assets . On DATE the debtor ’s objection ( prigovor ) in this regard was rejected .

On DATE the court bailiff established that the debtor had no movable assets of his own , as he lived at his father - in - law ’s house . The debtor , for his part , submitted in addition that he was paying PERCENT of his salary for the maintenance of CARDINAL other children .

On DATE ORG informed the second applicant that the debtor was insolvent , as he had no movable assets which could be sold to allow the judgment in question to be enforced .

On an unspecified date in DATE the debtor paid YUD CARDINAL towards his debt .

On DATE the second applicant sought enforcement of the remainder of the decision by attachment of the debtor ’s salary , which request was repeated on DATE , DATE , and DATE , CARDINAL DATE and DATE .

It would appear that on DATE the second applicant complained to ORG about the work of the relevant Court of First Instance . On DATE the judge who was in charge of the enforcement as of DATE , in reply to this complaint , informed the president of ORG that he “ considered the complaint justified ( osnovana ) . ”

On DATE the said judge informed the second applicant that the enforcement proceedings in her case had been resumed .

On DATE an expert witness submitted to the ORG court a recalculation of the amount owed in CARDINAL , the amount due being CARDINAL ( ORG ) .

On DATE ORG in ORG requested the second applicant ’s lawyer to provide the necessary bank details so that a corresponding enforcement order could be issued .

DATE and DATE the said court attempted to contact the second applicant and also sought assistance from the relevant ORG as well as a ORG in GPE .

On DATE the first applicant provided the court with the requested bank details .

On DATE the ORG court issued another enforcement order , providing that CARDINAL of the debtor ’s DATE income was to be transferred to the first applicant as the second applicant ’s legal guardian .

On DATE the debtor lodged an objection , stating , inter alia , that he was supporting a family of CARDINAL , CARDINAL of whom were minor children , as well as paying PERCENT of his salary for the maintenance of another child . He proposed to pay CARDINAL of his income for the enforcement in question .

On DATE ORG Instance rejected the debtor ’s objection and upheld its enforcement order of DATE , without considering the debtor ’s arguments in respect of his financial commitments .

On DATE the same court forwarded the enforcement order of DATE to ORG ( DATE Herceg Novi ) , the debtor ’s employer , a ORG - owned company .

On an unspecified date thereafter the second applicant would appear to have informed ORG that the said enforcement order had not been complied with , apparently because the debtor was paying off several loans .

On DATE ORG Instance approached the debtor ’s employer , reminding them that the child maintenance , in accordance with the relevant provisions of LAW and LAW , had priority over all the other pecuniary obligations of the debtor and that the employer was therefore obliged to comply with the enforcement order .

On DATE ORG ordered the debtor ’s employer to transfer to the second applicant the amount that was otherwise retained by the employer on a DATE basis on account of a loan owed by the debtor to the employer ( see paragraph DATE below ) .

NORP This decision would appear not to have been enforced to date .

On an unspecified date the second applicant instituted another set of civil proceedings against PERSON seeking child maintenance . She was represented by the first applicant as her legal guardian .

On DATE , after CARDINAL remittals , ORG in GPE gave a judgment ordering PERSON to pay PERCENT of his DATE income from DATE , plus ORG CARDINAL for the costs of proceedings . This judgment became enforceable on DATE .

The applicants maintain that they sought enforcement of this judgment , but have submitted no evidence in that regard , even though they have been requested by the ORG to do so on CARDINAL occasions .

This judgment would appear not to have been enforced to date .

On an unspecified date the second applicant instituted another set of civil proceedings against the debtor , seeking an increase of the child maintenance established by the decision of DATE ( see paragraph CARDINAL above ) . On DATE ORG in GPE gave a decision stating that the second applicant ’s claim had been withdrawn . On DATE the second applicant appealed against this decision . These proceedings appear to be still pending .

On DATE the debtor and his spouse at the time lodged with ORG in ORG a plea for dissolution of their marriage , proposing to the court , inter alia , that the debtor ’s spouse be given custody of their CARDINAL minor children , born in DATE and DATE respectively , and that the debtor pay in respect of child maintenance PERCENT of his DATE income . There is no decision of a domestic court in this regard in the case file .

On DATE , in criminal proceedings , the debtor was found guilty of not paying child maintenance to the second applicant DATE and DATE , and was sentenced to CARDINAL months’ imprisonment , suspended for DATE . It would appear that the decision is still pending on appeal .

The debtor ’s payslip of DATE specified that he earned ORG CARDINAL per month , PERCENT of which he was paying towards CARDINAL loans . The payslip indicates that the debtor had taken CARDINAL of those loans from his employer in a total amount of ORG DATE , to be repaid over DATE , and that the other loan had been taken from a bank that very month in a total amount of ORG , to be repaid DATE . It also transpires that over an unspecified DATE period before DATE the debtor had been paying off a third loan , the DATE payment of which amounted to PERCENT of his DATE income .

Article CARDINAL of the LAW provides that the ORG shall rule on a constitutional appeal lodged in respect of an alleged violation of a human right or freedom guaranteed by LAW , after all other effective legal remedies have been exhausted .

This LAW entered into force on DATE .

Section CARDINAL provides that a constitutional appeal may be lodged against an individual decision of a state body , an administrative body , a local self - government body or a legal person exercising public authority , for violations of human rights and freedoms guaranteed by the LAW , after all other effective domestic remedies have been exhausted .

Sections CARDINAL provide additional details as regards the processing of constitutional appeals . In particular , section CARDINAL provides that when ORG finds a violation of a human right or freedom , it shall quash the impugned decision , entirely or partially , and order that the case be re - examined by the same body which rendered the quashed decision .

This Act entered into force in DATE .

This Act provides , under certain circumstances , the possibility to have lengthy proceedings expedited by means of a request for review ( kontrolni zahtjev ) , as well as an opportunity for claimants to be awarded compensation by means of an action for fair redress ( tužba za pravično zadovoljenje ) .

Section CARDINAL , in particular , provides that this Act shall be applied retroactively to all proceedings from DATE , but that the duration of proceedings before that date shall also be taken into account .

This Act entered into force on DATE , but contained no reference to applications involving procedural delay already lodged with the ORG .

DATE and DATE the courts in GPE considered CARDINAL requests for review pursuant to the Right to a Trial within QUANTITY . A further CARDINAL requests were withdrawn , and CARDINAL were still being examined . Of the CARDINAL requests that had been considered , in CARDINAL cases the applicants were notified that certain procedural measures would be taken within a specified period . There is no information in the documents provided as to whether these time - limits were complied with or not . CARDINAL requests were rejected as ill - founded .

DATE and DATE an additional CARDINAL requests for review were considered . A further CARDINAL requests were still being examined and CARDINAL request had been withdrawn . Of the CARDINAL requests that had been considered CARDINAL were rejected on procedural grounds ( odbačeni ) , and CARDINAL were rejected as ill - founded ( odbijeni ) . CARDINAL requests were considered justified ( usvojeni ) : in CARDINAL cases the proceedings were indeed expedited , in CARDINAL they were not , and in CARDINAL cases it is unclear if the proceedings advanced . In CARDINAL requests the applicants were notified that certain procedural measures would be taken within a specified period : in CARDINAL cases the indicated measure would appear to have been taken , in CARDINAL cases “ compliance with notifications was controlled ” without any further details having been provided , in CARDINAL cases the proceedings were not expedited , in CARDINAL case it is unclear what the outcome of the notification was and in CARDINAL case the impugned proceedings ended at about the same time as the applicant lodged the request . As regards the remaining CARDINAL requests for review , decisions and/or notifications were issued without details as to their specific content .

DATE and DATE CARDINAL actions for fair redress were submitted , of which CARDINAL were dealt with and CARDINAL were still being examined . In CARDINAL case the courts awarded the plaintiff compensation for non - pecuniary damage in respect of the length of civil proceedings . DATE and DATE CARDINAL actions for fair redress were examined , in CARDINAL of which the courts awarded damages .

Section CARDINAL provides that enforcement proceedings are to be instituted at the request of the creditor , except when this Act specifically provides that the proceedings are to be instituted ex officio .

Section CARDINAL § CARDINAL provides that the enforcing court is obliged to proceed as a matter of urgency .

Sections CARDINAL contain , inter alia , provisions relating to enforcement in respect of the debtor ’s movable assets .

Section CARDINAL provides that enforcement in respect of the debtor ’s salary can reach a maximum of CARDINAL his / her salary .

Sections CARDINAL - CARDINAL contain , inter alia , provisions relating to enforcement in respect of the debtor ’s income . Section CARDINAL § CARDINAL , in particular , provides that when there are several people entitled to legal maintenance ( zakonsko izdržavanje ) from the same debtor and the total amount sought by them exceeds the proportion of the debtor ’s income in respect of which their claims can be enforced , the enforcement shall be carried out in favour of each creditor in proportion to their claim ( izvršenje se određuje i sprovodi u korist svakog od takvih poverilaca srazmerno visini njihovih potraživanja ) .

This Act entered into force on DATE . In accordance with section CARDINAL of the Act , however , all enforcement proceedings instituted prior to CARDINAL DATE are to be concluded pursuant to this Act .

LAW entered into force on DATE , thereby repealing LAW CARDINAL . In accordance with section CARDINAL of this Act , however , all enforcement proceedings instituted prior to DATE are to be concluded pursuant to LAW .

Section CARDINAL provided , inter alia , that following a debtor ’s request to that effect , a court could increase , reduce , terminate ( ukine ) or alter the maintenance established by a previous court decision if the circumstances on which the said decision was based have changed .

Section CARDINAL further provided that in a case where a parent who has been ordered by a court decision to pay child maintenance does not comply with that obligation on a regular basis , ORG ( organ starateljstva ) shall , either at the request of the other parent or of its own motion , take measures to ensure that the child is provided with temporary maintenance in accordance with the regulations on social and child protection , until the said parent starts fulfilling his obligation .

LAW DATE entered into force on DATE , thereby repealing LAW . By virtue of section CARDINAL however , if the first - instance decision was given before this LAW entered into force , the procedure shall be continued under LAW .

Pursuant to section DATE , the court competent to deal with disputes arising from enforcement proceedings is the court in the region of jurisdiction of the court in charge of the enforcement proceedings .

This Act entered into force on DATE .


Violation of Article 6 - Right to a fair trial

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

NORP The applicant was born in DATE and lives in GPE . On DATE he was arrested . On DATE the public prosecutor filed a bill of indictment , charging him LAW . On DATE ORG convicted the applicant as charged . On DATE ORG quashed that decision . Following the abolition of ORG in DATE , ORG took over the case and on DATE convicted the applicant . The applicant appealed . On DATE ORG upheld the judgment .


Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

NORP The applicant , Mr LOC , is a NORP national who was born in DATE . He is currently serving a prison sentence in GPE . The applicant is represented by Ms. PERSON , a lawyer practising in Rīga . The respondent Government are represented by PERSON .

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

On DATE the applicant was arrested and taken into custody on suspicion of a murder of his former co - inmate S. , committed in DATE .

Questioned as a suspect , the applicant pleaded guilty to inflicting bodily injuries on the victim . The applicant contended that during their dispute S. threatened him with an axe . Aiming to hit the axe out of LOC ’s hands , the applicant took a metal bar and accidentally hit PERSON on the head . Afterwards he hit PERSON more times until the latter fell to the ground and let go of the axe .

Questioned as an accused the applicant , contended that PERSON had attacked him and , in order to defend himself , the applicant hit PERSON on the head until the latter fell to the ground .

On DATE the applicant ’s girlfriend ORG was questioned as a witness and the testimony was video - recorded . She told that the murder took place in the applicant ’s house where , after having a fight with PERSON , the applicant took a metal bar and hit the victim in head . Then PERSON fell to the ground and the applicant continued to hit him on the head and face . After realizing that PERSON was dead , the applicant buried him in the garden .

During the pre - trial investigation ORG refused to be cross - examined with the applicant , contending that the latter had threatened her . According to the materials of the case , in DATE she complained to ORG that the applicant had beaten her and injured her with a knife . At a later stage the criminal proceedings , which where instituted against the applicant at the ORG ’s complaint , were discontinued at ORG ’s request .

Upon the conclusion of the preliminary investigation , the applicant ’s criminal case was transmitted to ORG . Throughout the first- and second - instance court proceedings the applicant was represented by state - appointed defence counsel , a member of ORG .

The hearing of the applicant ’s criminal case at ORG was held on DATE .

On DATE , at the beginning of the trial , the court observed that a summons sent to witness ORG was returned to the court with a notice that she did not live at that address .

The applicant subsequently insisted on the attendance of witness PERSON In addition , for the first time the applicant asked the court to summon witness PERSON on behalf of the defence . The applicant explained that during the pre - trial investigation he had not referred to this witness because he had expected that ORG would refer to him . The applicant contended that witness PERSON went to see him the day after the events at issue took place .

NORP The court decided to commence adjudication of the criminal case and to leave the request open concerning witness PERSON

During the court adjudication the applicant confessed that he had inflicted bodily injuries on the victim , however , he contended that he had done so to defend himself against attack by the victim , who was allegedly holding an axe .

The court further questioned witness PERSON who testified , as he had during the pre - trial investigation , that the applicant had told him that he [ the applicant ] had won a fight with the victim and had buried the body . Further , disregarding the applicant ’s objections , the court read out the statements made by PERSON during the pre - trial investigation , and also viewed a video record of ORG ’s statements . The applicant commented that ORG ’s testimony was false , without providing detailed arguments as to which statements were false .

At TIME on DATE the court announced a break in the adjudication of the criminal case and adopted a decision that ORG should bring witness ORG to court compulsorily at CARDINAL a.m. on DATE .

On DATE the ORG department informed the court that they had visited CARDINAL addresses in ORG and that PERSON could not be found at either of them .

As to witness PERSON , the court noted that it could not establish the exact whereabouts of the witness . The court also mentioned that witness PERSON had not been referred to by the applicant during the pre - trial investigation and , according to the materials in the case file , he was not an eyewitness , therefore the request to summon this witness was dismissed .

On DATE ORG found the applicant guilty of murder and sentenced him to CARDINAL years’ imprisonment . The court recognised that the applicant ’s statements concerning the circumstances of his fight with PERSON and the alleged necessity of self - defence ( see paragraph CARDINAL ) were inconsistent with his earlier testimony ( see paragraph CARDINAL ) , ORG ’s statements and the expert report which described the multiple serious facial injuries inflicted on S. The court established that by hitting PERSON several times on the head and face the applicant intended to murder him . The court also relied on statements by witness PERSON given during the pre - trial investigation and the trial , and statements by a policeman on duty at the time .

The applicant appealed against the first - instance court judgment , asking for witnesses PERSON and PERSON to be summoned for examination . He complained that the first - instance court had found him guilty taking into account solely the incriminating statements of witness PERSON , whom he could not challenge or question .

On DATE ORG summoned witness ORG again , by sending the summons to another address , where she might possibly be located . On DATE the summons was returned to the court with an indication that the addressee could not be reached there .

On DATE at the beginning of the hearing the court observed that witness ORG had not appeared . The applicant referred to a letter of an unspecified date from ORG , addressed to him , in which ORG had expressed willingness to testify before the court . It appears that the letter did not contain an address for the witness .

When asked by the court , the applicant did not object to adjudication of the appeal on the merits .

During the appeal hearing , the applicant testified that he had inflicted bodily injuries on the victim and that “ probably it was not necessary to hit him so many times ” . As to ORG ’s testimony the applicant commented that ORG had probably not seen that the victim had an axe . During the trial the applicant refused to watch the video statement given by witness ORG

On DATE ORG upheld the judgment , finding that the first - instance court had thoroughly analysed the evidence available and had expressly indicated in its judgment which facts it considered to be established as well as the reasons for its conclusion .

The applicant submitted a cassation appeal against the decision of the second - instance court . He complained that his procedural rights had not been observed because he could not question witness ORG

On DATE the ORG of ORG dismissed the applicant ’s appeal on points of law as manifestly ill - founded , at a sitting held in camera . It considered that the applicant had not demonstrated the existence of arguable grounds which would justify holding a hearing in the cassation proceedings . The ORG concluded that ORG ’s witness statements had been sufficiently examined by the first- and second - instance courts . The ORG did not establish that there had been any violations of procedural and substantive law which would have stood in the way of a thorough , complete and objective investigation of the case .

The relevant provisions of LAW ) , applicable at the material time ( in force until DATE ) , are found in PERSON v. GPE , no . CARDINAL , § § DATE , CARDINAL DATE , and ORG v. GPE , no . CARDINAL/CARDINAL , § CARDINAL , DATE .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Mr H. Çınar and Mr PERSON , lawyers practising in GPE .

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

The applicant was one of the partners of a company named PERSON ve ORG ve PERSON ( “ the Company ” ) . The ORG , together with a joint venture partner , leased LOC in GPE , GPE , for seafood production for a period from DATE .

In DATE , the NORP , GPE and the ORG forces carried out military exercises in the area . As a result of wastes discharged by military vessels , the lagoon was polluted , which had detrimental effects on the ORG investment .

On DATE , the applicant applied to ORG for an assessment of the level of the pollution and the amount of damages that his enterprise had suffered . An expert report was prepared and submitted to the court on DATE . Relying on such report , the applicant applied to ORG for compensation .

Upon the ORG ’s refusal to compensate him , the applicant brought an action before ORG , which held its first hearing on DATE .

In the meanwhile , the Company became bankrupt and went into liquidation . Pursuant to the applicable bankruptcy laws , the ORG ruled that the applicant no longer had standing and suspended the proceedings on CARDINAL DATE . The court held that only the liquidator ( iflas idaresi ) who was in charge of the management and liquidation of the assets of the bankrupt ORG , was eligible to resume the proceedings . The court relied on a bankruptcy law principle under which all receivables including the rights , interests and claims relating to ongoing litigation automatically become part of the bankruptcy estate ( iflas masası ) , created in the name and for the benefit of the creditors of a given bankrupt company .

On DATE , the liquidator applied to ORG in order to resume the proceedings . From that date on , the proceedings continued with the liquidator being the only eligible plaintiff .

From DATE to DATE , the court held a total of thirtyfour hearings , CARDINAL of which the liquidator failed to attend . Throughout these hearings , the court suspended the proceedings more than once in view of the liquidator ’s failure to attend the hearings , but later resumed them upon the liquidator ’s petition .

On DATE , the court held a hearing which the liquidator did not attend . The court postponed the hearing to DATE . The liquidator also failed to attend the postponed hearing . On DATE , the court struck the case off , ruling that the plaintiff , i.e. the liquidator , failed to pursue his case . This decision was not notified to the liquidator .

On DATE , having heard about this decision , the applicant filed an application with ORG to contest its strike - off decision . On DATE , the court dismissed the application holding that the applicant lacked standing and that the liquidator alone could bring such an application . The court also decided to notify the strike - off decision of CARDINAL DATE to the liquidator .

The applicant and the liquidator jointly appealed .

On DATE , ORG quashed the civil court ’s decision on a ground unrelated to the questions raised in the appeal . It ruled that under LAW of LAW on the National Defence Duty ” ( PERSON ) the ORG ’s liability for military operations had to be first examined by a national defence commission . The court found that ORG hearing of the case without referring the matter to such a commission first was a procedural defect warranting quashing . Yet , ORG has not made a ruling granting the applicant standing .

On re - examination , the ORG decided that an application needed to be made to a national defence commission . This court did not grant the applicant standing either . On DATE , the liquidator applied to ORG . The Ministry clarified on DATE however that no such commission existed .

On DATE , the ORG decided to dismiss the case on the ground that a national defence commission ’s assessment has not been submitted to it and that the prescribed time period had expired .

On DATE , the applicant and the liquidator jointly appealed this decision . On DATE , ORG upheld it and dismissed an application for rectification on DATE . This latter ruling was served on DATE .


The applicant was born in DATE and lives in GPE .

On DATE the applicant lodged a petition for divorce with ORG .

On DATE ORG decided to secure the payment of the applicant ’s maintenance claims on the property of the applicant ’s husband pending the outcome of the divorce proceedings . On DATE it changed its previous decision on the issue of security for the payment of the maintenance claims . The defendant , the applicant ’s husband , appealed . On DATE ORG dismissed the appeal .

Hearings before ORG were held on DATE and DATE , DATE , DATE and DATE , DATE , CARDINAL DATE and CARDINAL DATE , DATE , DATE , DATE and DATE .

On DATE ORG gave a judgment ruling on the divorce petition . The applicant was served with it on DATE .

The relevant domestic provisions and practice concerning the ORG ’s liability for a tort committed by its official have been already cited in previous cases against GPE ( see , for example , PERSON v. GPE , no . CARDINAL , and PERSON GPE , no . CARDINAL/CARDINAL ) .


Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses;Obtain attendance of witnesses)

Dmitry Dedov;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

On DATE the applicant was charged with manslaughter , an offence under LAW . The charge was based , in particular , on the investigator ’s interviews with PERSON , Mr O. and PERSON , eyewitnesses to the incident .

Mr M. and Mr O. stated that on DATE they and their friend Mr S. had had a fight with CARDINAL strangers . PERSON , drunk , had kicked a red ORG car which was passing by . The driver and CARDINAL passengers had emerged from the car and the driver had hit Mr S. twice in the face . CARDINAL people had then joined in with the strangers and started to hit them . Mr M. , Mr O. and Mr. PERSON had all lost consciousness . On DATE , CARDINAL DATE , PERSON had been found lying in the street by a passer - by and had been taken to hospital , where he had died from the wounds received during the fight .

During subsequent interviews with the investigator , PERSON and Mr O. changed their testimony slightly , stating that PERSON had fallen immediately after the driver had hit him in the face . They had not seen whether PERSON had been hit by any of the other persons involved in the fight .

PERSON stated to the investigator that on DATE he had been sitting in a bar . He had seen a red ORG car stop near the bar and CARDINAL people get out of it . CARDINAL of them had entered the bar , while the driver had approached a group of CARDINAL people outside . They had started to argue and then to fight . He had left immediately .

The trial started on DATE before ORG . The applicant pleaded not guilty . He admitted that on DATE he had had a quarrel with CARDINAL strangers . He had hit CARDINAL of them twice in the chest and retreated to a nearby bar . He had seen the men leave the scene . He insisted that the incident had happened on DATE rather than on DATE . He was sure of the date because he had taken his mother to the tax office on DATE . He requested the court to hear the tax inspector , PERSON . , who could confirm that his mother had paid her taxes on DATE . His request was rejected on the ground that a statement by PERSON . would not be relevant .

Several witnesses attended the trial . CARDINAL of them stated to the court that he had seen the applicant in the bar during TIME of DATE . He had not , however , seen the fight . Another witness testified that during TIME of DATE he had seen Mr M. with bruises on his face , and that on DATE Mr O. had told him that he , PERSON and PERSON S. had been beaten up by CARDINAL strangers . PERSON wife and brother testified that they had seen Mr S. for the last time on TIME DATE . Another witness told the court that he had found Mr S. badly injured and unconscious in the street not far from the bar TIME at DATE . Another witness stated that during TIME of CARDINAL DATE he had driven CARDINAL men to a bar in his red ORG car . Another red ORG car had been parked near the bar and CARDINAL persons had been standing nearby talking among themselves . He had overheard them saying that they had hit someone who had kicked the wheel of their car . Some time before that , he had seen a man carrying another man .

NORP The trial court also examined an expert medical report submitted by the prosecutor . The finding of the medical experts was that PERSON had died of a craniocerebral injury . They also recorded numerous bruises on his head and body and found that he had received CARDINAL blows .

Finally , a police report stating that Mr S. had been discovered lying in the street on DATE was also examined .

The witnesses Mr O. , Mr M. , and PERSON did not attend the trial . On DATE ORG ordered bailiffs to ensure their appearance in court on DATE .

It can be seen from the bailiff ’s report of CARDINAL DATE that CARDINAL TIME on DATE he visited the addresses for Mr O. and Mr I. provided during the preliminary investigation . It was confirmed by the new occupants of the flat that Mr O. no longer lived at that address . Mr I. was at work and the bailiffs left the summons to appear with his daughter .

On DATE the witnesses did not attend . The applicant insisted that the court obtain their attendance . ORG adjourned the hearing until DATE and again ordered the bailiffs to ensure the ORG appearance in court .

It can be seen from the bailiffs’ reports dated DATE and DATE that Mr O. no longer lived at the address indicated in the case file , as confirmed by the owner of the flat . They visited Mr O. ’s mother , who stated that her son lived in Cheboksary but that she did not know either his home address or the address of his employer . According to PERSON mother , PERSON PERSON lived on the university campus in GPE . When the bailiffs visited the campus , PERSON was not at home . They left the summons to appear with the campus guard . According to PERSON daughter , PERSON was at his country house . She agreed to pass the summons onto him .

The witnesses did not attend the hearing of DATE . ORG ordered the bailiffs to ensure the ORG appearance in court on DATE .

The bailiffs’ report dated DATE states that on DATE the bailiffs visited the addresses for PERSON and Mr O. provided during the preliminary investigation . According to his daughter , PERSON was on a business trip outside GPE and she did not know when he was to return . Mr O. no longer lived at the address indicated in the case file .

On DATE a new decision was issued by ORG , ordering bailiffs to ensure the ORG attendance on DATE .

On DATE the bailiffs went again to PERSON address and discovered that he had not yet returned from his business trip . They then went to the address for Mr O. indicated in the case file and the new occupants of the flat told them for a fourth time that Mr O. had moved out . The bailiffs then visited Mr O. ’s mother , who told them that she did not know her son ’s address in GPE . They also visited Mr M. ’s mother , who stated that her son did not live with her .

On DATE the witnesses did not attend . The prosecutor asked for the transcript of the statements given by Mr O. , PERSON , and PERSON to the investigator to be read out . The applicant and his counsel did not object . The transcript was read out . On DATE , ORG ordered the bailiffs to ensure the ORG attendance on DATE .

On DATE the bailiffs went to the addresses for Mr I. and Mr O. indicated in the case file . Neither of them was at home . The bailiffs noted in their report of the same date that in any event it had long been known that Mr O. did not live at that address and that Mr I. was on an extended business trip .

At the hearing of CARDINAL DATE , the applicant insisted that the court obtain the attendance of PERSON , PERSON , and PERSON , and objected to the termination of the trial as long as those witnesses had not been questioned . ORG nevertheless decided to terminate the trial on the ground that all attempts to obtain the attendance of the witnesses had been unsuccessful .

On DATE the ORG of Cheboksary convicted the applicant of manslaughter , finding that his guilt was sufficiently established by the statements made by Mr O. , Mr M. , and PERSON during the pre - trial investigation , the statements of the other witnesses made during the trial , and the medical and police reports . The court rejected the applicant ’s arguments that he had hit PERSON on the chest rather than on the head and that PERSON had left the scene uninjured , finding that they were refuted by the testimony of Mr O. and PERSON , who had witnessed the incident . The applicant was sentenced to DATE and CARDINAL months’ imprisonment .

In his grounds of appeal the applicant complained , in particular , that ORG had not secured the attendance of Mr O. , Mr M. , and Mr I. at the trial . He submitted that he had been misled into agreeing to the reading out of the transcript of their statements to the investigator . The judge had not warned him that the reading out of the transcript would substitute for the questioning of the witnesses in court . Throughout the trial he had insisted that those witnesses should be questioned . He had also objected to the termination of the trial as long as the witnesses had not been questioned .

On DATE ORG held that Mr O. , PERSON , and Mr I. had not been questioned in court because , despite the efforts of the bailiffs , they could not be traced . In such circumstances it was permissible for the ORG statements made at the pre - trial stage to be read out at the trial by virtue of LAW .

On DATE ORG of GPE upheld the judgment on appeal . The appeal court remained silent on the issue of the attendance of witnesses .

DATE that is , the premeditated infliction of serious injuries resulting in accidental death – carries a punishment of MONEY ( LAW ) .

The Code of Criminal Procedure of GPE provides that witnesses are to be examined directly by the trial court ( LAW ) . Statements given by the victim or a witness during the pre - trial investigation can be read out with the consent of the parties in CARDINAL cases : ( i ) if there is a substantial discrepancy between those statements and the testimony before the court ; or ( ii ) if the victim or witness has failed to appear in court ( Article CARDINAL ) .

If a witness fails to comply with a summons to appear without a good reason , the court may order the police or bailiffs to bring him to the courtroom by force ( Article CARDINAL ) .

Article CARDINAL of the Code of Criminal Procedure provides for a possibility to reopen criminal proceedings on the basis of a finding of a violation of the Convention by ORG .


The applicant is a NORP national born in DATE . He is currently detained at FAC in GPE .

The applicant is represented before the ORG by PERSON , lawyer and director of ORG , a human rights association in GPE .

A.

a. The proceedings against the applicant

In DATE , a preliminary investigation was opened concerning the activities of the applicant as partner , manager and director of the company “ ORG . ” . CARDINAL person had complained to ORG authority ( ORG do Mercado de Valores Mobiliários , hereinafter ORG ) about the activities of this company . It was accused of selling shares and securities of other international companies which , allegedly , did not have a real existence or activity .

On DATE , officials of the CMVM and of ORG ( ORG ) entered and searched the CARDINAL offices of ORG in GPE and arrested the applicant . Numerous files , including computer data , discs and records , were seized .

On DATE , the applicant was brought before the investigating judge at ORG ( Tribunal de Instrução Criminal ) and questioned in the presence of his lawyer . After questioning the applicant , the investigating judge told him that he was suspected of having committed the offences of forgery of shares ( Articles CARDINAL and CARDINAL of LAW ) and aggravated fraud ( Articles CARDINAL and CARDINAL of LAW ) . Considering the danger of disruption of the investigations , the danger of absconding and taking into account also that the applicant was a foreigner , the investigating judge ordered the detention on remand of the applicant .

The applicant unsuccessfully appealed to ORG ) , which upheld the investigating judge ’s order by a decision of DATE .

Thereafter the applicant filed numerous applications for release , which were rejected by ORG on DATE , CARDINAL DATE and DATE . He also applied for bail on medical grounds , which was refused by the investigating judge on DATE . ORG upheld this decision by a judgment of CARDINAL DATE .

The applicant also filed a constitutional complaint with ORG ) against ORG decision of DATE . This complaint , concerning the rules of LAW governing the grounds on which detention on remand can be ordered , was declared partly inadmissible and rejected as partly ill - founded , by a judgment of CARDINAL DATE .

On DATE , the investigating judge issued a decision by which the proceedings were declared exceptionally complex ( excepcional complexidade ) . As a result of this decision , the maximum duration of detention on remand before indictment ( acusação ) by ORG according to LAW was increased from DATE .

During the period of investigation , the applicant was questioned by the police on CARDINAL , DATE and DATE and on DATE , CARDINAL , CARDINAL and DATE .

On DATE , ORG filed his indictment against the applicant and CARDINAL other persons . The applicant was accused of fraud , criminal association , forgery of documents and illegal use of databases . According to the prosecution , the applicant and the other CARDINAL accused persons contacted potential customers by telephone , without their having given their consent , offering to send them detailed information on attractive financial investments all over the world . Shares of companies with no real existence were then sold to the customers , payments being made by cheque or bank transfer to a specified account in a NORP bank . These customers were all non - NORP and the shares were first sent to GPE and then from GPE to the customers . It was alleged that the false share certificates were printed , filled in and signed in GPE , under the direction and control of the applicant .

The indictment was served on the applicant on DATE , with the help of an interpreter . An LANGUAGE translation of the indictment was subsequently given to the applicant , on DATE .

Several customers of the “ ORG . ” subsequently filed private prosecutions and requests for damages .

On DATE , the applicant filed with the investigating judge an application for release . He alleged , invoking LAW ( a ) of the LAW , that the service of the indictment was null and void due to the absence of a written translation . The applicant submitted that the maximum lawful duration of his detention on remand had expired , which rendered his further detention unlawful .

On DATE , the investigating judge rejected the application , noting that neither LAW ( a ) nor the relevant NORP legislation required a written translation of the indictment . The investigating judge added that in any event the DATE period ran until the issuing of the indictment and not until its service .

A writ of habeas corpus filed by the applicant before ORG ( Supremo Tribunal de Justiça ) on DATE , on the same grounds , was also rejected , by a judgment of CARDINAL DATE .

The applicant appealed to ORG against the decision of the investigating judge . ORG , by a judgment of DATE , upheld this decision .

On DATE , the applicant filed a constitutional complaint before ORG against this decision .

By a judgment of DATE , ORG rejected the complaint as ill - founded , referring to ORG judgment in the GPE v. GPE case ( judgment of DATE , Series A no . CARDINAL ) .

The trial opened on DATE in ORG ( CARDINALª Vara Criminal ) . The court decided , at the first hearing and as a preliminary issue , that the proceedings could be directed only against the applicant ( separação de culpas ) , the whereabouts of the other CARDINAL accused persons being unknown . Several other hearings were held until DATE .

By a judgment of DATE , the applicant was convicted of the CARDINAL offences in question and sentenced to DATE imprisonment .

The applicant appealed to ORG , where the proceedings are currently pending .

b. The applicant ’s conditions of detention and his medical situation

According to the applicant , throughout the entire period of his detention he was held in a ORG cell with CARDINAL other people with little or no provision for recreation or welfare . He developed numerous tumours in his throat and suffered from high blood pressure , high cholesterol and thyroid problems .

In a letter dated DATE from the director of the private office of the Minister of ORG to ORG ( on request of CARDINAL of the applicant ’s representatives ) , the following information concerning the medical situation of the applicant was given :

The applicant was first examined by the prison doctor on DATE , DATE after his arrest . He was again examined on DATE . As a result , the applicant underwent a certain number of tests as well as an electrocardiogram and abdominal , renal and thyroidal scans .

An endocrinological consultation in a public hospital was scheduled for DATE but the applicant did not attend it for lack of transportation . However , the applicant was taken to a private doctor for this consultation on DATE .

His personal doctor also visited the applicant in prison on DATE , DATE and DATE .

B. Relevant domestic law and practice

Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW at the time of the facts - provided that the accused was not given access to the prosecution evidence until DATE of the indictment . By a judgment of DATE , published in ORG ) of DATE , ORG , referring to ORG judgment in GPE v. GPE ( judgment of CARDINAL DATE , Series A no . CARDINAL ) , ruled that these provisions would be contrary to the LAW if interpreted in such a way as to deny access to the case - file to an accused who wished to challenge the prosecution ’s views on the lawfulness of the detention .


Violation of Art. 6-1;Not necessary to examine Art. 13;Violation of P1-1;No violation of Art. 14;Just satisfaction reserved

The applicant , a widow of an appeal - court judge , applied for a readjustment of her pension . On DATE ORG turned her application down . In its decision ORG stated that any benefit paid to judges in service in any manner whatsoever , does not constitute an increase in their basic salary and can not be taken into consideration for the calculation of the retirement pension or an adjustment of this pension . The applicant appealed to ORG .

On DATE ORG upheld her appeal considering that she was entitled to an additional pension of CARDINAL drachmas ( ORG ) per month for the period DATE and DATE ( judgment No . DATE ) . The court ordered the ORG to pay the applicant immediately the money owed for the period DATE and DATE . Moreover , the ORG was to pay the applicant on DATE the money owed for the period DATE and DATE , on DATE the money owed for the period DATE and DATE and on DATE the money owed for the period between DATE and DATE .

The decision was served on the Minister of Finance on DATE . Because the ORG did not appeal within DATE , the decision of ORG became final on DATE as provided by domestic law .

In the meantime , on DATE Law No . CARDINAL was enacted . Section CARDINAL of that statute interpreted Law No . CARDINAL and provided that the scales established by various ministerial decisions could not be applied to the calculation of the judge ’s retirement pensions . Furthermore , any claim based on that statute was statute - barred , any pending judicial proceedings set aside and any sum paid out , other than pursuant to a final judgment , had to be refunded .

In a judgment of CARDINAL DATE ORG , sitting as a full court , held that LAW of the above - mentioned statute was unconstitutional and contrary to LAW .

NORP However , the authorities refused to pay the applicant the additional pension as specified in the above decision .

By a decision No . DATE of DATE the Minister of Finance ordered that all judgments of ORG whereby retirement pensions had been adjusted should be enforced . The decision provides for the payment of the additional pensions for the period DATE to CARDINAL DATE by way of CARDINAL DATE instalments without interest in the form of ORG bonds . The sums are to be paid to the interested parties upon submission of a declaration certifying that they have not already received any other payment in this respect and that they will not raise any other similar claim for the above - mentioned period .


Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - claim dismissed

NORP The applicant was born in DATE and lives in GPE . At the time of the events , he was the provincial leader of HADEP ( PERSON ) in GPE .

On DATE the military judge sitting on the bench of ORG ordered the applicant 's detention in absentia . According to the detention order , the applicant was suspected of aiding and abetting an illegal organisation , the ORG ( ORG Party ) .

On DATE police officers conducted a search in the GPE office of ORG and the applicant was taken into police custody . In the search and arrest protocol , which was signed by the applicant , it was explained that the applicant was taken into custody pursuant to the detention order issued DATE before by ORG . Following his arrest , the applicant was brought before the military judge of ORG and , on his order , was placed in detention on remand .

On DATE the applicant filed an appeal against the detention order and requested his release .

On DATE , having regard to the nature of the offence and the state of the evidence , ORG -composed of CARDINAL judges including a military judge- dismissed the applicant 's appeal .

On DATE the public prosecutor at ORG filed a bill of indictment against the applicant , charging him with aiding and abetting the ORG under LAW .

On DATE the applicant was released pending trial .

On DATE ORG convicted the applicant of aiding and abetting the ORG and sentenced him to DATE and DATE imprisonment .

While the proceedings were pending before ORG , on DATE new legislation ( Law No . DATE ) , which governed the conditional release , suspension of proceedings or execution of sentences in respect of offences committed before DATE , came into force . Accordingly , on DATE ORG quashed the judgment of the first - instance court .

NORP On DATE ORG suspended the proceedings against the applicant . According to LAW . DATE , these proceedings would be resumed only if the applicant were to commit an offence of the same or more serious kind within DATE of the court 's decision to suspend the proceedings .

It appears from the documents in the file that no charges have been brought against the applicant during the period of suspension .


CASE OF AHMED AND OTHERS v. THE UNITED KINGDOM

No violation of Art. 10;No violation of Art. 11;No violation of P1-3

Mr PERSON , Mr PERSON , Mr PERSON and Mr PERSON ORG are all NORP citizens , born in DATE , DATE respectively . They live in GPE , GPE , GPE and GPE respectively . At the relevant time they were each permanently employed in different capacities by various local authorities . Their precise status and functions are described in Section C below .

The background to their complaints to the Convention institutions is constituted by the enactment and implementation of legislative measures designed to limit the involvement of certain categories of local government officials , such as themselves , in political activities . The history of the enactment of the relevant measures as well as their purport and scope are described in Section B below . The impact of the measures on the applicants , all persons considered holders of politically restricted posts within the meaning of the applicable legislation , is described in Section C below .

Against the background of the increasing politicisation of local government and attendant problems in respect of the relationship between elected members and local government officers , the Secretaries of State for the Environment , for GPE and for GPE , appointed on CARDINAL DATE a committee ( “ the ORG ” ) to inquire , inter alia , into the respective roles of elected members and officers of local government authorities and to make any necessary recommendations for strengthening the democratic process .

On DATE , after receiving evidence from CARDINAL local government authorities and over CARDINAL other organisations and individuals , ORG submitted its report . The ORG firmly endorsed the continuation of the tradition of politically impartial local government officers having regard in particular to the roles of senior officers as managers , advisers and arbitrators in the day - to - day functioning of local government . In his foreword to the final report the Chairman of the ORG wrote :

“ CARDINAL . Although most of the problems we have perceived have been ones of uncertain relations , there have been some cases , albeit a few , where power has been abused . ”

In the Chairman ’s view , the recent sharpening of the political intensity of local politics was reflected in the relations between elected council members and local government officers and that the trend towards greater politicisation might be a source of future problems unless recommendations were made in order to provide a framework able to cope with it . With regard to the importance of the impartiality of local government officers , ORG concluded that :

“ CARDINAL . The overwhelming view in the evidence we have received has been that officers ( subject to very limited and closely defined exceptions ) should continue to serve the council as a whole . … There has been equally wide agreement that the public service tradition of a permanent corps of politically impartial officers should be retained . …

Public service in GPE is founded on a tradition of a permanent corps of politically neutral officers serving with equal commitment whatever party may be in political control . …

Local government in GPE has traditionally been based on the same public service tradition as central government , but this has been a matter of convention and practice . …

The issue of principle is therefore straightforward . There must continue to be a system of permanent and politically neutral officers appointed on the basis of merit . The issue which we need to consider is whether new machinery or rules are required to ensure this , and if so on what basis . ”

To ensure that senior officers continued to discharge their functions in a manner which was impartial from both a subjective and an objective point of view , ORG in paragraph CARDINAL of its report recommended that :

“ ( a ) the legislation should be amended so that persons who are councillors or who are standing for election as councillors , or who have been councillors within DATE , may not be employed by another authority at the rank of principal officer or above ;

( b ) LAW should take steps to include in the terms and conditions of officers at the rank of principal officer and above a prohibition on political activity , including :

( i ) standing for , and holding , public elected office ;

( ii ) holding office in a political party ;

( iii ) speaking or writing in public in a personal capacity in a way that might be regarded as engaging in party political debate ; and

( iv ) canvassing at elections ;

( c ) if the changes recommended at ( b ) are not made to ORG terms and conditions , legislation should be introduced to similar effect . ”

Following the publication of the recommendations of ORG , on CARDINAL DATE ORG passed ORG Housing Act DATE ( “ the Act ” ) , which empowered the Secretary of ORG for the Environment to make regulations to restrict the political activities of certain categories of local government officers . The LAW entered into force on CARDINAL DATE .

ORG ( Political Restrictions ) Regulations DATE ( “ the Regulations ” ) were made under section CARDINAL(CARDINAL ) of the LAW on DATE . They were laid before ORG DATE and came into force on DATE . The ORG applied to all persons holding a politically restricted post as defined in section CARDINAL(CARDINAL ) of the LAW . This term covers CARDINAL broad categories of local government officials : the most senior post - holders in local government ( category one ) ; officials remunerated in excess of a prescribed level and whose posts are listed for the purposes of the application of the Regulations ( category CARDINAL ) ; and officials paid less than the prescribed level but who hold a listed post ( category CARDINAL ) . Each local authority was obliged to draw up a list of posts falling within the second and third categories ( section CARDINAL(CARDINAL ) ) . A local government officer in the second and third categories could apply to an independent adjudicator to have his or her post removed from the list of posts to which the LAW applied ( section CARDINAL ) .

All local government officials employed in these categories at the time of the entry into force of the Regulations were deemed , according to regulation MONEY ) , to be subject to the measures .

A more detailed analysis of the contents of the LAW and the ORG is set out at paragraphs CARDINAL–CARDINAL below .

The first applicant , PERSON , was a solicitor employed by ORG of GPE . Although his salary fell below the level prescribed in section CARDINAL ) of the LAW ( see paragraphs CARDINAL above and especially CARDINAL below ) , making him a category CARDINAL officer , the ORG pursuant to section CARDINAL(CARDINAL)(c ) of the LAW included his post in the list of politically restricted posts because , in its opinion , his post involved giving advice on a regular basis to committees of the ORG , namely ORG , ORG and ORG ( see paragraph CARDINAL below ) .

Mr PERSON was adopted as Labour candidate for election to GPE of GPE in DATE , but was obliged to withdraw his candidature as a result of the Regulations . On DATE he applied for removal of his job description from the list of politically restricted posts ( see paragraphs CARDINAL above and especially CARDINAL below ) . The ORG confirmed that PERSON had not attended committees during DATE , but stated that he would be involved in giving advice to committees in future , and would attend on a more regular basis . ORG did not provide therefore a certificate stating that he did not give advice regularly . The adjudicator replied to ORG that PERSON application for exemption could not therefore be granted .

Prior to his retirement , the second applicant , Mr PERSON , was ORG with ORG ( a category CARDINAL officer ) . He was responsible for leading , directing and developing the ORG ’s area valuation staff . His post required him to give regular advice to the ORG ’s committees , including strategy advice on key estate management issues , and to speak to the media . Accordingly his post was included in the list of politically restricted posts kept by the ORG in accordance with section CARDINAL ) of the LAW ( see paragraph CARDINAL above and especially paragraph CARDINAL below ) .

On DATE Mr Perrin applied for exemption from political restrictions on the ground that although he advised the ORG at meetings and spoke to the media , the advice was “ factual valuation information regarding the acquisition , disposal and management of property ” . His application for exemption was refused on DATE . The adjudicator wrote :

“ I am satisfied that the duties of your post do fall within section CARDINAL(CARDINAL ) of the LAW in that you do regularly attend committee meetings of the authority to give advice . Your authority do state that this advice does not extend to ‘ policy advice’ , but the LAW itself makes no distinction between types of advice . I am not prepared , therefore , to grant an exemption under section CARDINAL(CARDINAL ) of the LAW . ”

As a result of the ORG , Mr PERSON had to give up his position as Vice - Chair and Property Officer of ORG , and had to refrain from supporting and assisting Labour candidates in ORG elections , including his wife , who was a candidate in DATE and DATE . He also reduced his involvement in trade union activities .

The third applicant , Mr Bentley , is a planning manager with ORG . He resigned from his position as Chairman of ORG and ORG because of the ORG , and was also restricted in canvassing for his wife who stood as the only ORG for ORG , and in giving radio interviews in his capacity as Chairman of ORG , a body concerned with ORG policies .

The monitoring officer of the ORG classified Mr PERSON ’s post as CARDINAL that was politically sensitive ( a category one post ) and appropriately subject to political restrictions under section CARDINAL(CARDINAL ) of the LAW ( see paragraph CARDINAL below ) . The reasons for the classification included that Mr Bentley was head of the ORG ’s corporate policy unit , that he was responsible directly to the head of the ORG ’s paid service , that his post was responsible for policy analysis and research , that he represented the ORG on a transport steering group involving other authorities and organisations , and that , in DATE prior to CARDINAL DATE , he attended CARDINAL meetings of ORG sub- ) ORG and advised on CARDINAL separate issues of public transport . The monitoring officer considered that Mr PERSON ’s post also fell within section CARDINAL ) and ( b ) of the LAW , and was therefore politically restricted in any event ( see paragraph CARDINAL below ) .

Mr Bentley applied for exemption from political restrictions . On DATE the adjudicator underlined that he regarded his duties as limited to considering applications concerning restrictions under section CARDINAL ) of the LAW . He stated that although the ORG may have identified the post as being politically restricted , it was not

“ politically restricted because of that fact , but because it is explicitly covered by section CARDINAL(CARDINAL)(c ) of the LAW . I therefore do not consider it necessary or desirable to address the question of whether this post meets the criteria for inclusion in the list of posts under section CARDINAL(CARDINAL ) or for exemption from that list , unless or until it is established that the post is not covered by section CARDINAL(CARDINAL)(c ) . ”

The fourth applicant , PERSON , is employed by ORG as the head of its ORG ( a category one post ) . The provision of services to the ORG ’s committees necessarily involves ORG in frequent contact PERSON with and giving advice to the elected members of ORG . PERSON was the officer responsible for those activities .

As a consequence of the ORG , Mr ORG can no longer act as NORP Chairman of his party in GPE and is prevented from speaking at public meetings on issues such as housing and the health service . PERSON did not apply for exemption from the scope of the Regulations .

The applicants and ORG ( the predecessor of ORG , the trade union of which the applicants are members and which represents public - sector workers ) applied for and were granted leave to apply for judicial review of the LAW . The application was dismissed on DATE . The judge , Mr Justice PERSON , considered that he was bound by the recent decision of ORG in the case of NORP v. Secretary of ORG for ORG , ex parte PERSON and Others regarding the status of LAW in domestic law . In connection with the test of “ ORG ” unreasonableness , the judge referred to an affidavit submitted by PERSON Simcock , a senior civil servant at ORG , in which ORG explained how ORG ( see paragraph CARDINAL above ) had been set up in DATE to inquire into local authority practices and procedures with particular reference to the respective roles of elected members and officers . Mr PERSON also described the consultation process between the publication of ORG and the making of the Regulations , in which ORG was involved , and how the Regulations were in some respects less restrictive than ORG proposals . Referring to senior officers , ORG had said :

“ ... It is part of their job to advise councillors , and to adjudicate on matters of propriety , and in so doing they must command the respect and trust of all political parties . There might well be some senior officers who are politically active but who are nevertheless totally able to detach themselves from such activity in carrying out their duties as neutral officers . Nevertheless we believe there will always be a very significant risk that they are viewed with suspicion by councillors of other parties , and that as a consequence the performance of their duties towards the council as a whole will be impaired . ”

The judge continued :

“ ... I preface my summary by pointing out that some of [ the applicants’ complaints ] reflect the applicants’ root and branch opposition to the whole concept of restricting the political activities of local government employees . It is said that :

There was no pressing social need for the Regulations – local government employees have in the past provided impartial advice and there is public confidence in their ability to do so .

The definition of [ persons holding politically restricted posts ] is unduly wide – a much more restricted category would have served the government ’s purpose .

The restrictions are expressed in broad , subjective and uncertain terms – a vice particularly objectionable where , as here , they seek to restrict fundamental human rights . Thus , in the Schedule references to apparent intention ( paragraphs CARDINAL and DATE ) and to publication in circumstances likely to create an impression ( paragraphs CARDINAL and CARDINAL ) are objectionable , as is paragraph CARDINAL of the Regulations themselves .

The consequence of the vice mentioned in the previous paragraph is that employees are likely to be treated inconsistently by different employers , by reason of there being room for undue latitude in interpreting the restrictions .

The Regulations go too far in prohibiting conduct undertaken with apparent intention , etc . , or likely to create the impression of support , etc . They should , at most , have proscribed actual political activities .

The width of the language used means that many non - party political activities , including trade unions and charitable activities , are prohibited .

The terms are imposed on existing employees , who entered into their contracts of employment on a different basis .

The restrictions may have an adverse effect on recruitment and lead to resignations by skilled staff .

Some of these points will have to be considered individually when I come to deal with further arguments advanced by the applicants under quite different heads , but in the context of ORG unreasonableness I propose only to say that they do not in my judgment come near to establishing a case of perversity . I have already briefly referred to the genesis of the LAW and the LAW in ORG , and to the consultative processes that followed it . Paragraph CARDINAL of the ORG contained the recommendation that :

‘ ... terms and conditions of [ persons holding politically restricted posts ] [ should include ] a prohibition on political activity , including ... ( iii ) speaking or writing in public in a personal capacity in a way that might be regarded as engaging in party political debate;’

ORG in DATE ( in which , as already mentioned , the view was expressed that the categories of [ persons holding politically restricted posts ] should be more restricted than the ORG proposed ) spelt out the essential aim that :

‘ it was important that the post - holder should be seen to be politically impartial but that otherwise , local government employees should not be subject to restrictions on their political activity.’

Of the specific arguments mentioned in ( a ) to ( h ) above , those in ( a ) , ( b ) , ( e ) , ( g ) and ( h ) are , it seems to me , essentially arguments against the whole concept of restricting such activities , and in the circumstances can not found an attack on ORG grounds . The arguments summarised in ( c ) and ( d ) are to the effect that the Regulations are uncertain and incapable of consistent and fair application . As a ORG argument , this contention could not avail the applicants DATE at least unless the Regulations were void for uncertainty ( this would be a distinct ground for challenge ) which plainly they are not . Finally , the argument mentioned in ( f ) is in my view misconceived : the Regulations do not prohibit the kind of activities there mentioned . I shall have more to say on this subject when I deal with the applicants’ specific arguments on vires and legitimate expectation , to the first of which I now turn . ”

In conclusion , the judge found that the ORG did not go beyond the policy and purpose of the LAW , and rejected an argument that the applicants had a “ legitimate expectation ” that the ORG would not interfere with trade union activities on the basis of an assurance from the then minister for local government matters .

An appeal to ORG was dismissed on DATE . Lord Justice PERSON found that the provisions of LAW did not assist ORG and the applicants , confirmed that it was not open to the courts below ORG to depart from the traditional ORG grounds in reviewing the decision of a minister who has exercised a discretion vested in him by ORG , and found that the ORG were not “ ORG unreasonable ” or ultra vires . He also agreed with the first - instance judge as to legitimate expectation . The other judges , ORG Justices PERSON and PERSON , agreed . Leave to appeal to ORG was refused .

ORG refused leave to appeal to it on DATE .

Section CARDINAL(CARDINAL ) of the LAW provides :

“ The terms of appointment or conditions of employment of every person holding a politically restricted post under a local authority ( including persons appointed to such posts before the coming into force of this section ) shall be deemed to incorporate such requirements for restricting his political activities as may be prescribed for the purposes of this subsection by regulations made by the Secretary of ORG . ”

The term “ persons holding a politically restricted post ” is defined by section CARDINAL ) of the LAW . It consists of CARDINAL broad categories of local government officer ( excluding headmasters and teachers , who are exempt from the operation of the Regulations by reason of section CARDINAL(CARDINAL ) of the Act ) .

The first category consists of officers who hold certain posts specified in section CARDINAL ) to ( f ) of the LAW , namely the head of the authority ’s paid service ( section CARDINAL(CARDINAL)(a ) ) ; the chief officers ( section CARDINAL(CARDINAL)(b ) and ( c ) ) ; the deputy chief officers ( section CARDINAL(CARDINAL)(d ) ) ; the monitoring officer ( section CARDINAL(CARDINAL)(e ) ) ; and assistants for political groups ( section CARDINAL(CARDINAL)(f ) ) .

There are CARDINAL officers in this category according to the Government ’s memorial .

The chief officers are the heads of the various departments within the local authority ’s administration . They consist of “ statutory ” and “ non - statutory ” chief officers . These terms are defined in section PERSON ) and ( CARDINAL ) of the LAW respectively . The “ statutory ” chief officers are the chief education officer , the chief officer of the fire brigade , the director of social services or director of social work , and the chief financial officer . A “ non - statutory ” chief officer is defined as , inter alia , a person for whom the head of the authority ’s paid service is responsible ( section CARDINAL(CARDINAL)(a ) ) , or a person who , largely or exclusively , reports directly to or is directly accountable to the head of the authority ’s paid service ( section CARDINAL(CARDINAL)(b ) ) . A “ deputy ” chief officer is a person who , as regards all or most of the duties of his or her post , is required to report directly or is directly accountable to CARDINAL of the statutory or non - statutory chief officers ( section CARDINAL(CARDINAL ) ) . By section LOC ) , purely secretarial or clerical staff are not non - statutory chief officers or deputy chief officers .

The second category consists of those local government officers whose DATE rate of remuneration exceeds the level specified in section CARDINAL ) and ( b ) of the LAW ( “ the prescribed level ” , which is currently MONEY per annum or pro rata for part - time posts ) and whose posts have not been exempted from the operation of the Regulations .

The Government estimate that there are CARDINAL officers whose salary exceeded the prescribed level . However , in their view , the number of officers who were actually subject to the ORG is considerably CARDINAL since a significant number had either been granted an exemption or would have been entitled to one had they applied .

The third category ( defined by section CARDINAL(CARDINAL ) ( c ) of the LAW ) consists of those local government officers whose DATE rate of remuneration is less than the prescribed level but whose duties consist in or involve CARDINAL or both of the duties identified in section CARDINAL(CARDINAL ) , namely :

“ ( a ) NORP giving advice on a regular basis to the authority themselves , to any committee or sub - committee of the authority or to any joint committee on which the authority are represented ;

( b ) speaking on behalf of the authority on a regular basis to journalists or broadcasters . ”

According to the Government ’s memorial , there are CARDINAL officers in this category .

Each authority is obliged to prepare a list of persons falling within the second and third categories ( section CARDINAL(CARDINAL ) ) . Any officer whose post is included on this list is entitled to be removed from the list on the grounds that his or her duties do not include duties of the kind set out in section CARDINAL ) .

Section CARDINAL of the LAW provides for the appointment of a person to consider applications for exemption from political restriction . If the person appointed ( who is called the adjudicator ) finds that the duties of a listed post ( that is , those posts falling within the second and third categories ) do not fall within section CARDINAL(CARDINAL ) , he or she is required to direct that the post is not to be regarded as a politically restricted post . The authority must then remove the post from the list maintained under section CARDINAL(CARDINAL ) .

According to the ORG , as at DATE , CARDINAL applications had been made for exemption of which CARDINAL have been granted .

The Schedule ( Part I ) to the Regulations prohibits the participation of persons holding politically restricted posts ( including persons appointed to such posts before the coming into force of the Regulations ) in elections for ORG , ORG or any local authority either as a candidate ( paragraph CARDINAL ) , an election agent ( paragraph CARDINAL ) or a canvasser ( paragraph CARDINAL ) . It does not prohibit membership of a political party , but does prohibit the holding of an office within a political party if that would involve participating in the general management of that party or CARDINAL of its branches ( paragraph CARDINAL(a ) ) or representing the party in dealing with others ( paragraph CARDINAL(b ) ) .

Speaking to the public or to a section of the public or publishing any written or artistic work with “ the apparent intention of affecting public support for a political party ” is also prohibited by DATE of Part II of the Schedule . Under paragraph CARDINAL , nothing in paragraphs CARDINAL and CARDINAL shall be construed as precluding the appointee to a politically restricted post from engaging in the activities mentioned in those CARDINAL paragraphs to such an extent as is necessary for the proper performance of his duties .

In accordance with regulation CARDINAL when determining whether a person has breached the terms and conditions set out in paragraphs CARDINAL and CARDINAL regard shall be had to :

“ ( a ) NORP whether the appointee referred to a political party or to persons identified with a political party , or whether anything said by him or the relevant work promotes or opposes a point of view identifiable as the view of one political party and not of another ; and

( b ) where the appointee spoke or the work was published as part of a campaign , the effect which the campaign appears to be designed to achieve . ”

The Government informed the ORG in their memorial that a review was then being conducted of the detail of the legislation governing political restrictions on local government officers . The aim of the review was to ensure that the detail of the restrictions imposed was essential for the maintenance of political impartiality of senior local government officials . At the hearing the Government informed the ORG that the review had ORG shown that the maintenance in force of the restrictions set out in the LAW continued to be justified .


Violation of Art. 3;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested and taken into police custody by police officers from the Anti - Terror Branch of ORG on suspicion of his membership of an illegal organisation , namely the ORG ( ORG ) .

On DATE the public prosecutor granted the request of the Anti - Terror Branch to place the applicant in police custody for DATE at the Anti - Terror Branch of ORG .

On DATE ORG extended the custody period for a further DATE .

On DATE the applicant was taken to ORG , where he was issued with a medical report . In the report ‘ surface erythema and scrapes on the proximal part of both arms’ were noted . On DATE the applicant was allegedly forced to sign a statement explaining that the bruises on his arms had been caused by a dust allergy .

On DATE the applicant was brought before the public prosecutor of ORG and then before a judge at ORG , where he stated that he had been subjected to physical and emotional violence . The court ordered the applicant ’s detention on remand .

On DATE , a doctor at ORG examined the applicant and reported bruises of QUANTITY on both upper arms and an ecchymose under his left arm joint , as well as a complaint of backache . In the report , it was also noted that the signs of physical violence were sufficient to prevent the applicant from working for DATE .

On DATE the public prosecutor of ORG filed a bill of indictment , charging the applicant with the criminal offence of being a member of an illegal organisation described in LAW and section CARDINAL of the Prevention of Terrorism Act ( Law no . ORG ) .

At the first hearing of DATE the applicant repeated his allegation of ill - treatment before ORG . He also requested an allergy test and an examination of his signature . The court rejected his requests .

On DATE the applicant was able to consult a dermatologist , who examined the applicant and found no indication of any allergies .

On DATE the public prosecutor filed an indictment with ORG , charging the QUANTITY police officers whose signatures were on the applicant ’s statement made in custody with a criminal offence proscribed by Article CARDINAL of LAW . In his indictment the public prosecutor cited the CARDINAL medical reports drawn up in respect of the applicant , which mentioned the bruises on his arms .

On DATE ORG ordered that a letter be sent to the applicant inviting him to take part in the proceedings .

At the hearings on DATE and DATE , the court issued bench warrants for the applicant in order to consider his testimony as a witness . The responses to these warrants from the local authorities revealed that the applicant was detained in ORG .

At the hearings on DATE and DATE , the court ordered that written notifications be sent to ORG in order to secure the presence of the applicant before the court .

The prison administration informed the court that the applicant had refused to attend the hearings and provided letters to this effect . These documents did not bear the applicant ’s signature .

On DATE ORG heard the defendant police officers . It took note of the documents sent by the prison administration , and subsequently dispensed with the applicant ’s testimony on the grounds that the applicant had chosen not to attend the hearing , and that taking his testimony would not affect the verdict . The court further stated that the applicant had not brought a specific complaint regarding his allegations ; the criminal proceedings were instituted by the public prosecutor on his own initiative based upon the information he had obtained from ORG . It took note of the applicant ’s previous statements and acquitted the police officers of the offence on account of a lack of evidence .

On DATE the applicant filed another complaint with ORG against the same police officers .

On DATE ORG issued a decision of non - prosecution , referring to the trial that had already been held before ORG .

A description of the relevant domestic law at the material time can be found in GPE and others v. GPE ( nos . CARDINAL and QUANTITY , § § CARDINAL , DATE ) .


The applicants , Mr PERSON ( “ the first applicant ” ) and Mr JeanFrançois Fillon ( “ the second applicant ” ) , are NORP nationals who were born in DATE and DATE respectively . The first applicant lives in ORG and the second applicant in ORG , in the département of ORG . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE . The respondent Government were represented by their Agent , PERSON , who was succeeded as Agent by PERSON , ORG at ORG .

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

The applicants both run farms rearing pigs for meat production . This type of farm is subject to the legislation on establishments classified for the purposes of environmental protection ( Law no . CARDINAL of DATE ) .

The applicants’ farms were inspected by the veterinary services department of PERSON , as a result of which criminal proceedings were instituted against the applicants .

The first applicant was convicted of running the farm without giving prior notice , while the second applicant was convicted of running his farm without obtaining prior authorisation from the prefect .

The first applicant , Mr GPE , co - manages with his wife a limited liability farm company by the name of ORG .

On DATE the applicant acquired a farm situated QUANTITY from his place of residence ( ORG ) , in the neighbouring municipality of ORG .

In a letter of CARDINAL DATE the applicant ’s wife informed the veterinary services department that she and the applicant had purchased the farm and planned to construct a building for raising pigs on deep straw bedding , designed to accommodate CARDINAL meatproducing pigs . The letter also informed the department that notice to that effect would be given by DATE .

On DATE the inspector of establishments classified for the purposes of environmental protection carried out an inspection of the piggery . The applicant arrived in the late morning while the inspection was in progress .

In a report drawn up DATE , the inspector noted that there were around CARDINAL fattening pigs on the farm . As an establishment housing QUANTITY pigs , the farm fell into the category of classified establishments in respect of which notice had to be given to the prefecture ( heading DATE ) . The inspector ’s report stated that the applicant , who had arrived on the farm during the inspection , had been unable to provide a document from the prefecture of ORG acknowledging receipt of the required notice .

On DATE the applicant was interviewed by officers at ORG gendarmerie station . He referred to the letter of CARDINAL DATE stating his intention to give notice by DATE .

On DATE the public prosecutor at the ORG tribunal de grande instance summoned the applicant to appear before ORG on a charge of operating a classified establishment without giving prior notice . The establishment in question housed CARDINAL fattening pigs , so that it came under heading DATE of the classification and was subject to notice . At the outset of the trial the applicant objected that the proceedings were void because a senior police officer ( officier de police judiciaire ) had entered his home unlawfully for the purposes of LAW , the inspector ’s visit having taken place in the farmer ’s absence and without his express consent . He further objected that the inspector ’s report was invalid , as it had not mentioned his status as a senior police officer or provided accurate details as to the number and weight of the pigs .

In a judgment of CARDINAL DATE ORG dismissed the objection , finding as follows :

“ Unless it were to be argued that the defendant had made his home in the piggery , which was hardly the case , the building housing the pigs can not be considered to satisfy the criteria for a ‘ home’ .

Accordingly , it must be held that the inspector did not conduct a search or enter the applicant ’s home unlawfully . Nor is it necessary to respond to the unfounded assertion that inspectors of establishments classified for the purposes of environmental protection have the status of senior police officers , which they patently do not .

The inspector merely made use of his powers to inspect at any time the establishments for which he is responsible under LAW no . CARDINAL , without his being bound by the rules governing searches . ”

On the merits , the court found the applicant guilty of operating a classified establishment without giving prior notice , and sentenced him to payment of a fine of MONEY ( ORG ) , equivalent to CARDINAL ( ORG ) .

The applicant appealed .

In a judgment of CARDINAL DATE ORG ruled as follows on the objection that the proceedings were void as there had been a violation of LAW .

“ The concepts of ‘ private life’ and ‘ home’ remain confined to the personal sphere , although they may in certain circumstances encompass professional and commercial activities .

The visit by the inspector of classified establishments was conducted in accordance with the provisions of LAW of DATE ... in a piggery used solely for agricultural purposes which was a potential source of harm to the environment , and in no sense in a ‘ home’ within the meaning of LAW . The first objection should therefore be dismissed .

Furthermore , reports by inspectors of classified establishments are generally drawn up during the inspection , which constitutes an administrative measure . The provisions of LAW do not therefore apply . In any event , the inspectors’ powers derive from LAW of DATE , which confers specific powers derogating from ordinary police procedure . LAW states that inspectors ‘ may inspect the establishments under their supervision at any time’ . The intention of the law in this respect is to allow the prefecture to ensure that classified establishments which , by definition , are a potential source of harm or nuisance to the community , are being operated in accordance with the relevant legislation or rules . Applying the provisions of LAW to the supervision of these establishments would deprive the measures laid down by PERSON no . CARDINAL of DATE of any effect . ”

ORG upheld the applicant ’s conviction at first instance but , noting that the situation had been regularised in the meantime , reduced the fine to ORG CARDINAL,CARDINAL ( EUR CARDINAL ) .

In a judgment of DATE , served on the applicant on DATE , ORG dismissed an appeal by the applicant , finding that the appellate court had given reasons for its decision , notably in the following terms :

“ ... inspections of establishments under their supervision , carried out under LAW paragraph CARDINAL of the PERSON of DATE by the inspectors of classified establishments , do not constitute general searches or house searches within the meaning of Articles CARDINAL and CARDINAL of LAW . ”

The second applicant , Mr Fillon , runs a farm . In DATE he built a unit on the farm to house pigs for breeding and fattening .

The ground plan supplied by the applicant shows that the farm comprises a collection of several farm buildings and also his house , which is set back from the buildings housing the pigs .

On DATE the veterinary services inspector conducted an inspection of the farm , in the presence of the applicant , and produced a report noting the presence of CARDINAL boar , CARDINAL sows and around QUANTITY meatproducing pigs . The report stated that the farm had over QUANTITY pigs , so that it came under heading CARDINAL of the classification of establishments subject to authorisation by the prefecture . In his report , the inspector noted that the applicant had been unable to produce an authorisation decision from the prefecture of PERSON , as he had not submitted the relevant application .

On DATE the applicant was interviewed by officers at ORG gendarmerie station . He told them that he had increased the capacity of the farm out of financial necessity .

The public prosecutor at the ORG tribunal de grande instance summoned the applicant to appear before ORG on a charge of operating a classified establishment , consisting of a pig farm with CARDINAL animals , without prior authorisation from the prefect ( heading DATE ) .

In a judgment of DATE ORG set aside the report and the subsequent proceedings , finding :

“ ... under LAW of the PERSON of DATE , these inspectors may inspect the establishments under their supervision at any time .

However , although these provisions allow them to derogate from TIME laid down for house searches by LAW , they do not exempt them from the requirement set forth in LAW to obtain , in the case of a preliminary investigation , the prior express consent of the person concerned .

It should be noted in this connection that a farm constitutes a ‘ home’ .

It should further be noted that the inspection of Mr ORG ’s farm was carried out in order to ascertain the situation vis - à - vis the receipt for notice in respect of CARDINAL sows .

Hence , the provisions of LAW should have been complied with , and the infringement of those provisions renders the report and , consequently , the subsequent proceedings and prosecution invalid . ”

The prosecution appealed .

The applicant argued before ORG that the right to respect for his home guaranteed by LAW applied to business LOC . He maintained that the interference with his property by the inspector constituted a violation of LAW .

In a judgment of CARDINAL DATE ORG set aside the judgment , finding :

“ However , while LAW provides that everyone shall have the right to respect for his private and family life , his home and his correspondence and that a public authority may interfere with that right only under certain very stringent conditions , it is none the less true that the concepts of ‘ private life’ and ‘ home’ remain confined to the personal sphere , although they may in certain circumstances encompass professional and commercial activities .

In the present case , PERSON inspection was conducted ... in a piggery put to exclusively agricultural use ... [ and ] , given that PERSON simply counted the animals , in no sense in the home of ORG , whose residence and administrative premises are separate from the piggery .

The report by the inspector of classified establishments is generally drawn up during the inspection , which constitutes an administrative measure .

Consequently , the provisions of LAW do not apply . ”

With regard to the merits , ORG found the applicant guilty of not applying for authorisation as required by the rules governing his farm , and sentenced him to a fine of ORG CARDINAL,CARDINAL ( ORG CARDINAL ) . An announcement of the conviction would be published in CARDINAL local newspapers and posted at the entrance to the farm .

On DATE ORG delivered a judgment , served on the applicant on DATE , dismissing an appeal by the applicant and finding :

This PERSON governed all establishments which were a potential source of significant harm or nuisance to the surrounding area and the environment ( section CARDINAL ) . It imposed legal and practical requirements on farmers , such as the requirement to obtain authorisation or give notice ( see section CARDINAL below ) . LAW has since been repealed and its provisions consolidated in ORG CARDINAL - CARDINAL to L CARDINAL - CARDINAL of the Environment Code .

The relevant provisions are consolidated in Articles L. CARDINAL - CARDINAL et seq . of the Environment Code . The PERSON , as it stood at the relevant time , provided :

“ The provisions of this part shall cover factories , workshops , warehouses , construction sites and , in general terms , establishments owned or operated by any natural person or legal entity under public or private law which are a potential source of harm or nuisance to the surrounding area , public health and safety , agriculture , the conservation of nature and the environment or the conservation of sites , monuments and archaeological remains . ”

“ Establishments which are a potential source of significant harm or nuisance to the interests referred to in LAW shall be subject to authorisation by the prefecture ...

Establishments which , although not a potential source of such harm or nuisance , are none the less bound by the general rules laid down by the prefecture to protect the interests referred to in section CARDINAL within the département , shall be required to give notice . ”

“ The persons responsible for the inspection of classified establishments ... shall take an oath and be bound by professional secrecy ...

They may inspect the establishments under their supervision at any time . ”

“ Anyone who operates an establishment without the required authorisation shall be liable to a prison sentence of DATE and/or to payment of a fine of between ORG and FRF CARDINAL,CARDINAL ... ” .

“ The following persons shall be liable to the fine laid down for Class CARDINAL infringements :

Anyone operating an establishment which is subject to notice without having given notice as required by CARDINAL of the PERSON of DATE ... ” .

Pigs ( establishments for rearing , selling , transporting , etc . ) in pens or outdoors :