Preliminary objection rejected (non-exhaustion);No violation of Art. 6-1;Not necessary to examine Art. 13

ORG The CARDINAL applicants , Mr PERSON , Mr PERSON and Mr PERSON , are brothers . They are businessmen .

ORG In DATE the applicants acquired ownership of the ORG of ORG ( " ORG " ) , a public company , for MONEY in cash . ORG was then , and is now , one of the largest groups of department stores in LOC and includes one particularly well - known GPE store , ORG . The acquisition of ORG was effected through a public company called ORG of ORG ( " ORG " ) , which at all material times was owned by the applicants . ORG had previously been known as ORG ( GPE ) ORG and assumed its present name in DATE .

ORG Prior to the ORG takeover , in or DATE , the applicants appointed public relations consultants . With the latter ’s assistance , the brothers and their direct advisers led the press to receive and present a positive picture of their origins , wealth , business interests and resources . Upon the basis of this picture , which they had a part in painting , they enjoyed , for a time , an esteem or reputation which was highly valuable to them . CARDINAL applicant gave separate interviews to ORG , The DATE FAC and ORG . A further interview involving the brothers took place on DATE . In these interviews the brothers described a wealthy , distinguished and established family background . They gave a similar picture to their merchant banker , who accepted it and , acting on their behalf , conveyed that picture by a press release in DATE and in a television interview in DATE . There were other press interviews about the family background for which the applicants were responsible .

They thus took active steps to promote their own reputations in the public domain . The acceptance of the brothers by GPE and by the Government was later considered to be crucial to an understanding of the events surrounding their takeover of ORG .

ORG The takeover was vigorously but unsuccessfully opposed by ORG ( " Lonrho " ) and , in particular , its Chief Executive , PERSON , a former business associate , turned rival , of the applicants .

From DATE , if not earlier , it had been ORG ’s wish to acquire ORG . In DATE , following a report from ORG the Secretary of ORG ( " the Secretary of ORG " ) had sought and obtained from ORG undertakings not to acquire or control any further shareholdings beyond its then level of PERCENT of ORG . Thereafter ORG had sought to be released from these undertakings .

In DATE ORG had sold its share - holding in GPE to the applicants , but when those directors representing ORG ’s interests were obliged to resign from ORG and the applicants bid to take over ORG completely , relations between PERSON and the applicants deteriorated . PERSON proceeded to launch an acrimonious campaign against the applicants . In opposing the applicants’ bid for ORG , ORG had made submissions to Ministers concerning unfair competition and the undesirability of ORG falling into foreign hands . It was alleged that the applicants were fraudulently claiming that the funds for the acquisition were theirs personally . PERSON asserted that the brothers were lying about their money and themselves and that they should not be permitted to acquire ORG without a thorough inquiry . However , the ORG bid was cleared by ORG ( " ORG " ) and accepted by ORG . In DATE the Secretary of ORG decided , on the recommendation of ORG , not to refer the ORG proposed acquisition to ORG , as had been done in the case of the earlier bid by ORG . The decision of Government clearance was expressly described at the time by the ORG as having been influenced by the statements made and assurances given by and on behalf of the PERSON brothers about their bid . ORG nevertheless campaigned on through the media and other publications , and in particular through The ORG , a newspaper it owned .

ORG The applicants instructed their solicitors to threaten and , if necessary , institute libel proceedings if anything were published putting in doubt their claim to be the beneficial owners of the funds used to acquire ORG . This policy affected several publications , including ORG . In almost every instance the threat of action led to the publication of a retraction . The applicants instituted CARDINAL libel actions against ORG in DATE and DATE for articles written about them . CARDINAL central issue in these actions was the truth or not of The ORG ’s allegation that the funds used by the applicants in their takeover of ORG were not their own .

ORG In DATE ORG commenced legal proceedings against the applicants and their bankers alleging wrongful interference with ORG ’s business , and conspiracy and negligence in connection with ORG ’s acquisition of ORG . In particular , it was alleged that the applicants , by false statements about their financial capacity to acquire the share capital and develop ORG ’s business , had persuaded ORG to accept their bid and had convinced the Secretary of ORG not to refer their bid to ORG . It was claimed that the applicants had thereby tortiously interfered with ORG ’s right to bid for the shares or , alternatively , they had conspired against ORG .

ORG unsuccessfully sought leave to apply for judicial review of the Secretary of ORG ’s refusal to refer the applicants’ acquisition of ORG to ORG .

ORG On DATE , after DATE of unrelenting pressure by ORG upon the ORG , the Secretary of ORG appointed CARDINAL ORG to investigate the affairs of ORG and , in particular , the circumstances surrounding the acquisition of shares in ORG in DATE and DATE . The appointment of the ORG was made by the Secretary of ORG under section CARDINAL ( CARDINAL ) of LAW DATE ( see paragraph CARDINAL below ) . They were told at the time of their appointment , and they so informed the applicants , that an area of particular concern to the Secretary of ORG was the validity of the assurances given by the applicants and their advisers in DATE ( Inspectors’ report , paragraphs PERSON , ORG and CARDINAL ) .

ORG In their subsequent report the ORG described the ORG takeover bid as being unusual , not least because it was a bid involving huge sums of money by CARDINAL individuals and , since the offerers were individuals , the corporate balance sheets and other financial statements which are customary on such occasions were totally absent ( Inspectors’ report , paragraph CARDINAL ) . In order to establish what had occurred during the takeover , they had been obliged to make findings on vigorously contested issues of fact ( Inspectors’ report , paragraph CARDINAL ) .

The principal questions they addressed when investigating the affairs of ORG were listed in their report as follows :

" ( i ) ORG Were the PERSON who they said they were , and if not who were they ?

( ii ) ORG Did they acquire ORG with their own unencumbered funds ?

( iii ) Did they deliberately mislead , whether directly or indirectly , those who represented them to the authorities and the public ?

( iv ) ORG If so , did they seek to frustrate those who tried to establish the true facts , and if so how ?

( v ) ORG What steps did ORG and its advisers take before they gave the comfort that they appeared to give to those who relied on their words or actions ?

( vi ) ORG Were the authorities - the officials of the [ ORG ] and the ORG and , eventually , Ministers - or the public misled about the PERSON ? If so , how and why ? "

( The Inspectors’ report , paragraph CARDINAL )

The ORG also stated that , throughout their investigation , they were not concerned solely with simple questions relating to the direct control of the purchase money which was used to buy ORG . They were also concerned about the veracity of the statements which the applicants made , or which they allowed others to make on their behalf , which had the effect of influencing people to act favourably towards them ( Inspectors’ report , paragraph CARDINAL ; and also chapter CARDINAL ) .

ORG During the course of the investigation , the ORG identified matters upon which they wished to receive evidence . If any uncertainty or issue arose in relation to the provision of such evidence , these were discussed in the course of meetings or through correspondence between the Inspectors’ staff and the applicants’ solicitors . Thereafter , information was provided to the ORG by way of memoranda , together with copy documentation . In addition , the ORG received oral evidence by interviewing witnesses on oath . Mr PERSON and Mr PERSON were interviewed , in the presence of their lawyers , on DATE and again on DATE . All proceedings were conducted in private . There was no opportunity for the applicants to confront or cross - examine witnesses , it being well - established as a matter of LANGUAGE law that the Inspectors were not obliged to afford such an opportunity to anyone .

ORG It was agreed between the ORG and the applicants that , having assimilated the factual information supplied , the ORG would notify the applicants of the provisional conclusions they had reached and the material upon which they had relied in reaching such conclusions . The ORG would then consider such submissions as the applicants might make in respect of these conclusions .

Respect for personal privacy was known to be a matter of especial concern to the applicants . The Inspectors’ approach to matters of privacy and confidentiality is summed up in their report ( at paragraphs CARDINAL - CARDINAL ) as follows :

" [ I]f private people incorporate a company , in which they become directors , and which makes public representations about their affairs , ORG who are appointed to investigate the truth of those representations must balance their concern to preserve the ORG privacy as far as practicable ... against their duty to do the job which they were appointed to perform .

If the PERSON had chosen to say nothing this might have created evidential difficulties for us . But because they wished us to make findings in their favour they brought witnesses to see us ... and gave us evidence about their private affairs which it was then our duty to test . "

ORG At the start of the investigation the applicants expressly accepted that the Inspectors were entitled to inquire into the accuracy of statements which had been made by them or on their behalf in DATE and DATE . These were the statements at the heart of the investigation . Only at DATE of the investigation , when they were confronted by the ORG with " overwhelming evidence " that they had been telling lies , did they resile from that stance and challenge the Inspectors’ entitlement to look into certain aspects of their private life ( Inspectors’ report , paragraph CARDINAL ) .

The ORG rejected the challenge and gave their reasons for so doing ( see generally chapter CARDINAL of the Inspectors’ report ) . The ORG were entitled to seek confidential information from third parties , but before doing so they gave the applicants an opportunity to satisfy them as to the accuracy of the statements " in whatever manner was least obtrusive to their privacy " ( Inspectors’ report , paragraphs DATE and CARDINAL ) . The law did not permit them to compel the applicants to produce personal bank statements ( which would have gone far to confirm or refute the accuracy of the statements ) nor , save to a very limited extent , did the applicants consent to such production . The ORG considered that the applicants were in breach of their duty to give all the assistance which they were reasonably required to give . By virtue of section CARDINAL of the DATE LAW could have certified this to a court , which could then have taken steps to sanction the applicants if , after hearing evidence , it was satisfied that they were in breach of their duty ( see paragraph CARDINAL below ) . The ORG were , however , of the opinion that they could complete their task without the need to resort to such a serious measure and chose to pursue the matter without making such a certificate . They made clear that if the applicants chose not to give evidence , they , the ORG , would be entitled to draw inferences from such failure .

ORG In DATE and thereafter ORG publicly criticised the conduct of the investigation by the ORG and sought DATE period in which to assemble and submit evidence to them . Through its lawyers , ORG argued that the rules of natural justice required the ORG to allow ORG access to the information the ORG had received from the applicants because ORG ’s commercial reputation would suffer if the ORG dismissed the complaints which it had made so publicly . The ORG dismissed ORG ’s application for access to the applicants’ evidence , but permitted ORG to have a longer period in which to adduce evidence to them , relating primarily to the personal background of the applicants and their family . The applicants’ solicitors in turn protested to the ORG vigorously about this latter decision . The written material provided to the ORG by ORG ran to CARDINAL of pages . The ORG accepted that ORG and its directors had pursued their ends in a remarkably single - minded manner , and they described the applicants and PERSON as " bitterly antagonistic parties " ( Inspectors’ report , paragraph CARDINAL ) .

ORG The Inspectors’ provisional conclusions , which exceeded CARDINAL pages of text and were , in large part , unfavourable to the applicants , were made available to the applicants on DATE . The ORG had previously made known to the applicants the gist of the adverse evidence received and the conclusions that they , the ORG , might be disposed to draw from that evidence .

DATE and DATE there was no significant response from the applicants . On DATE the applicants’ solicitors informed the ORG that they were not even in a position to discuss the procedural situation of the inquiry . The ORG told the ORG solicitors on DATE that by DATE the ORG would consider that they had had ample time to respond to the provisional conclusions . On DATE the applicants lodged detailed submissions running to CARDINAL pages and containing a mixture of factual analysis and legal argument and , quite often , new evidence . The argument sought to limit the scope of the inquiry very drastically . The applicants’ solicitors requested the ORG , as " the basic minimum which fairness required " , to deal with certain questions raised and , if rejecting any of their principal submissions , to state reasons before issuing any report ( Inspectors’ report , paragraph CARDINAL and chapter CARDINAL ) .

ORG On DATE the ORG delivered their report to the Secretary of ORG , in broadly the same terms as their provisional conclusions . They explained that they had not acceded to the applicants’ ultimate procedural request because they were of the view that otherwise the completion of their report might be indefinitely delayed :

" It appeared to us that the appropriate course for us to take would be to consider the written submissions we had received and to express our views on them when we submitted our report to the Secretary of ORG . Our findings would not be dispositive of anything , we had given ORG , ORG , the PERSON and their advisers ample time to make their submissions , which they had chosen to make in this way at this extremely late stage and we considered that it was in the public interest that we should now complete our work and submit our report . "

ORG The ORG concluded that the applicants had dishonestly misrepresented their origins , their wealth , their business interests and their resources to the Secretary of ORG , ORG , the press , ORG and ORG shareholders and their own advisers ; that during the course of their investigations , the ORG had received evidence from the applicants , under solemn affirmation and in written memoranda , which was false and which the applicants knew to be false ; in addition , that the applicants had produced a set of documents they knew to be false ; that this evidence related mainly , but not exclusively , to their background , their past business activities and the way in which they came to be in control of enormous funds in DATE and DATE ( see especially Inspectors’ report , chapter CARDINAL ) . The ORG were satisfied that the main thrust of ORG ’s attack on the applicants was well founded on a sound basis of substantiated fact ( Inspectors’ report , paragraph CARDINAL ) .

However , the ORG did not reject the entirety of the ORG evidence and praised part of their work . Thus the report included , for example , findings that " the departure of the ORG directors and their replacement by the PERSON brought harmony to a board where previously discord had existed " ( Inspectors’ report , paragraph CARDINAL.CARDINAL.CARDINAL ) ; and that " the Fayeds’ considerable ability to identify assets with a potential for capital appreciation has undoubtedly been an important element in their business success " ( Inspectors’ report , paragraph CARDINAL ) . In the final chapter of the report the ORG made complimentary findings of fact and expressed favourable opinions about ORG . They regarded the management of ORG since its acquisition as , subject to certain reservations , " law - abiding , proper and regular " .

ORG The Secretary of ORG passed the report to ORG and the Director of ORG . On DATE the ORG announced that publication of the report would be delayed until ORG had completed its investigations . In DATE the Secretary of ORG also sent copies of the report to ORG , ORG ( which is an integral part of the system of regulation of business in GPE ) , ORG , ORG and ORG .

ORG On DATE the Secretary of ORG announced that , consistent with the advice of the Director General of Fair Trading , he had decided against the referral of ORG ’s acquisition of ORG to ORG , even though the Inspectors’ report did disclose new material facts .

Also in DATE ORG made an application for judicial review of the Secretary of ORG ’s decisions ( i ) not to publish the report immediately and ( ii ) not to refer the acquisition to ORG in the light of the report . In the context of these proceedings the Director of ORG and ORG submitted affidavits in DATE stating their opinion that publication of the report would prejudice the criminal investigation and run the risk of preventing a fair trial in the event of criminal proceedings subsequently being brought against the applicants . ORG ’s application was ultimately rejected by ORG in DATE .

ORG On DATE The Observer newspaper published a CARDINAL - page special DATE edition devoted solely to extracts from and comments on a leaked copy of the Inspectors’ report . On DATE , ORG posted CARDINAL copies of the special edition to persons named on a mailing list to whom PERSON had been regularly sending literature hostile to the applicants . ORG immediately granted injunctions , on the applications of the Secretary of ORG and ORG , restraining any further disclosure of the report or its contents .

ORG During the course of a radio interview broadcast on DATE , the Secretary of ORG stated , prior to its publication , that the Inspectors’ report " clearly disclosed wrongdoing " . This gave rise to substantial press coverage .

ORG On DATE the Director of ORG and ORG announced that their inquiries into the matter were complete ( see paragraph CARDINAL above ) and that they would not be taking further action . In a joint statement issued on that date they said :

The Attorney General expressed himself satisfied that the conclusion reached by the CARDINAL directors was the correct CARDINAL on the basis of the admissible and available evidence . On DATE he stated to ORG , in reply to a question ( ORG , ORG , DATE , column CARDINAL ) :

" Whereas it was open to the ORG to take account of hearsay evidence if they thought that it was reliable - and of course it was open to them to reach the conclusion that they did - it would not have been open to a jury in a criminal case to convict upon evidence of the same character . The ORG are entitled to take account of evidence covering a wider scope than that available in criminal proceedings in an NORP court ... Inquiries were pursued in every part of the world indicated by the Inspectors’ report , but the [ Director of ORG and ORG ] had to conclude , as they said in their joint statement issued on DATE , that there was insufficient evidence available for use in an NORP court in LANGUAGE criminal proceedings on any matter of substance raised in the Inspectors’ report to warrant the bringing of criminal proceedings . "

ORG On DATE the Secretary of ORG had announced his intention to publish the report on DATE . It is general policy to publish reports on public companies , of which ORG was one ( see paragraph CARDINAL below ) . In addition the Government considered that in the particular case there were specific grounds of general public interest justifying publication . In their pleadings before the Commission they described these grounds as follows :

" There had been a complex and lengthy investigation , and the public were entitled to learn the result of that investigation unless there were compelling reasons why they should not . There were important lessons to be learnt by those involved in takeovers from studying the report . ... The report contained a recommendation that certain features of part ORG of the DATE LAW which deals with the investigation of companies and their affairs ) deserved to be reconsidered in the light of difficulties encountered by the ORG ... It was appropriate to acknowledge that the Secretary of ORG , the [ ORG ] , the ORG , certain journalists and sections of the press , ORG , the regulatory authorities , and the applicants’ professional advisers had been misled by the applicants . ORG considered that its interests and reputation had been seriously and adversely affected by the preparedness of the Secretary of ORG to allow the ORG bid to go forward in DATE without a reference to the [ ORG ] . ORG would have had a legitimate grievance if the explanation for this was suppressed without compelling reasons . There was a need to dispel continuing speculation as to the events which had given rise to the investigation . Rumours and speculation were rife . Publication of the report would provide employees and creditors with information concerning the way in which ORG and ORG had been run and might be expected to be run in future . ( The ORG were largely prepared to accept the sincerity of the ORG assurances for the future . ) The brothers had been prepared before the ORG to attempt to discredit ORG , PERSON , The ORG , its editor and others . It was deemed to be in the public interest to publicise both the fact that these attempts had been made and the conclusion of the ORG that they were ill - founded . "

ORG On DATE , the applicants were provided with pre - publication copies of the report in confidence , in order to enable them to consider their position .

Throughout the period between submission of the report to the Secretary of ORG in DATE and its publication on DATE the ORG solicitors had adopted , in extensive correspondence with the ORG and ORG , the position that judicial review or other court proceedings were likely to be taken , on the basis , inter alia , that the Inspectors’ report did not constitute a valid report under LAW DATE because of the scope of the investigation and alleged procedural unfairness ( including departures from what the applicants alleged was an agreed procedure ) . By letter dated DATE the ORG undertook that if the applicants were to apply for judicial review to challenge the validity of the report , publication would be held up pending the final determination by the courts of their application . In the event no such proceedings were commenced . According to the applicants , the possibility of applying for judicial review to prevent publication was kept under consideration by them and their advisers , but the unanimous view at all stages was that such proceedings were almost inevitably bound to fail .

ORG On DATE , DATE the report was published , the Secretary of ORG stated to ORG ( ORG , ORG , DATE , column CARDINAL ) :

" I should explain to the ORG that in this matter I have CARDINAL main responsibilities as Secretary of ORG : first , to decide whether to publish the report . This I have now done as soon as possible after I was informed by the prosecution authorities that they had withdrawn their objection to publication . Second , I had to consider whether to apply to the court to disqualify any director under LAW . I have concluded that it would not be in the public interest to do so . Anyone who reads the report can decide for themselves what they think of the conduct of those involved . Third , I also have responsibility for decisions on whether to refer mergers to ORG . That responsibility was fully discharged by my predecessor . He had DATE from DATE in which to consider the findings of the Inspectors’ report and to decide whether to refer the matter . He concluded in DATE that a reference to ORG would not be appropriate ...

No other matters require action from me . I have passed the report to all those authorities concerned with enforcement and regulation so that they may consider whether to take action under their various powers . "

The Secretary of ORG considered that the publication of the report and the ensuing publicity would enable people who might have dealings with the applicants in their capacity as directors to judge whether their interests were likely to be at risk from the type of conduct described in the report ( ibid . , column CARDINAL ) .

ORG The Secretary of ORG also publicly expressed his own view as to the correctness of the Inspectors’ findings . On DATE he told ORG ( ORG report on company investigations , CARDINAL DATE , ORG CARDINAL , Annex CARDINAL , p. CARDINAL , paras . CARDINAL , CARDINAL ) :

" ... the allegations in the report have not been substantiated in a court of law . We can all take our view about them and I think that the balance of probability is extremely strong that they are accurate , but there is no proof of this .

I am not required to say that every fact and opinion in the report is true . These were outside ORG who were appointed to look into these matters , and they published their report . I have no means of checking it word for word . I myself and I think most people are inclined to believe that the events revealed are correct , but we have no proof - that is all I am saying .

[ Question : ] It appears that [ the applicants ] even told a succession of lies to the ORG themselves , who were then investigating the lies they had already told . Is that right ?

[ Secretary of ORG : ] It so appears . "

ORG accepted the Inspectors’ findings as authoritative , referring in its subsequent report to the " misinformation concerning the financial status of the PERSON brothers " recounted in the Inspectors’ report ( ORG report , loc . cit . , p. xxvi , para . CARDINAL ) .

ORG On DATE of the publication of the report the applicants issued a press communiqué through ORG commenting on , inter alia , the contents of the report and the conduct of the ORG . Part of this press release read as follows :

" It is appalling to discover that CARDINAL people in such a position could have gone so badly off the rails in the conduct of this investigation .

The ORG misled us .

They misled our lawyers . Indeed they were not even honest with them .

They demonstrated prejudice towards us and they did not treat us even - handedly .

They reneged on their agreements with us .

They have employed language which has no place in such a document .

They have reached conclusions which they do not support with facts .

They have dishonoured themselves and the whole procedure of ORG inquiries .

These ORG went far beyond their legal powers , enquiring into matters that were no legitimate concern to them .

They completely disregarded the principles of natural justice . In simple terms they did not give us a fair hearing . They reversed the burden of proof in a denial of the basic tenet of NORP justice . They have held us to be guilty , unless proven innocent . "

ORG On DATE , in the course of a debate in ORG , the Minister of ORG stated ( ORG , CARDINAL DATE , columns CARDINAL - CARDINAL ) :

" Although the ORG concluded that the PERSON lied to the competition authorities at the time of the merger - I have no reason to believe that they were wrong , but it is for individuals to make up their own minds once they have read the report - the ORG did not criticise the PERSON for the way they were running the ORG of ORG which they already owned and which can not be taken away from them . In these circumstances , [ the Secretary of ORG ] considered that publication of the report , which would allow people to judge for themselves whether they wished to do business with the PERSON , would be a severe blow to their reputation , as indeed I think it has proved . "

ORG The report and its findings were widely reported on television , radio and in the national press . The applicants claimed that it very seriously damaged their personal and commercial reputations as the Minister had predicted .

In DATE they abandoned their libel actions against The Observer newspaper and paid the latter ’s £ CARDINAL,CARDINAL legal costs . At the time ORG was about to hear an appeal brought by the applicants on a preliminary procedural question . Failure in this appeal would have had the consequence of obliging the applicants to disclose a number of crucial documents bearing on the issue of the possible financing of the acquisition of ORG by third - party funds . According to the applicants , they discontinued the libel actions as a result of legal advice that publication of the Inspectors’ report had deprived them of any effective remedy ( see paragraph CARDINAL above ) .

DATE after the publication of the report ORG served notice of restrictions on ORG in relation to the ORG positions within that company . ORG considered that the Secretary of ORG had not taken sufficient action against the applicants ( ORG report on company investigations , loc . cit . , pp . xxv - xxvii , paras . CARDINAL - CARDINAL ) . ORG subsequently disciplined the applicants , in reliance on the report . As ORG made clear , it did not seek to conduct its own investigation into the facts , but relied on the Inspectors’ report . The penalty imposed was public censure .

ORG Lonrho persisted with its attacks . In DATE it applied for judicial review of the Secretary of ORG ’s refusal to apply to ORG for an order disqualifying the CARDINAL applicants as directors . This application was dismissed on DATE .

In DATE it was announced that a settlement had been negotiated between the applicant brothers and ORG , the terms of which included the discontinuance of all proceedings between the CARDINAL parties .

ORG The investigation of ORG was conducted under section CARDINAL ( CARDINAL ) of LAW DATE in relation to the circumstances surrounding the acquisition of shares in ORG in DATE and DATE . LAW ( CARDINAL ) empowers the Secretary of ORG to appoint ORG to investigate the affairs of a company and to report on them in such manner as he directs if it appears to him that there are circumstances suggesting wrongdoing , within the categories of wrongdoing defined as follows :

" ( a ) that the company ’s affairs are being or have been conducted with intent to defraud its creditors or the creditors of any other person , or otherwise for a fraudulent or unlawful purpose , or in a manner which is unfairly prejudicial to some part of its members , or

( b ) ORG that any actual or proposed act or omission of the company ( including an act or omission on its behalf ) is or would be so prejudicial , or that the company was formed for any fraudulent or unlawful purpose , or

( c ) ORG that persons concerned with the company ’s formation or the management of its affairs have in connection therewith been guilty of fraud , misfeasance or other misconduct towards it or towards its members , or

( d ) ORG that the company ’s members have not been given all the information with respect to its affairs which they might reasonably expect . "

ORG The Secretary of ORG is under no statutory obligation to disclose to the company concerned the reasons for the appointment of ORG to investigate its affairs ( ORG v. Secretary of ORG [ DATE ] CARDINAL Weekly Law Reports CARDINAL ( ORG ) ) ; nor does he generally do so . In the present case , when requested by ORG to do so in the course of ORG ’s judicial review applications , counsel for the ORG stated that the Secretary of ORG had acted under section CARDINAL ( CARDINAL ) ( a ) in appointing the ORG .

ORG Section CARDINAL confers wide powers upon the ORG to obtain information , if necessary by compulsion , from officers and agents of the company whose affairs are being investigated . An answer given by a person to a question put to him in exercise of powers conferred by section CARDINAL may be used in evidence against him ( section CARDINAL ( CARDINAL ) ) . Under section CARDINAL obstruction of the ORG may be certified by them to a court , which may , after enquiry , treat it as a contempt of court punishable by imprisonment or fine .

ORG The ORG are bound by the rules of natural justice ; they have a duty to act fairly and to give anyone whom they propose to criticise in their report a fair opportunity to answer what is alleged against them ( In re ORG [ DATE ] CARDINAL Chancery CARDINAL ( ORG ) ) . The ORG in the present case accepted as applicable to them the principle of natural justice whereby a person exercising an investigatory jurisdiction must base his or her findings on material having probative value ( Inspectors’ report , paragraphs CARDINAL and CARDINAL - citing ORG v. Air GPE [ DATE ] Appeal Cases CARDINAL ( ORG ) , at pp . CARDINAL - CARDINAL ) .

However , proceedings before the ORG are administrative in form , not judicial ; the ORG are not a court of law and they are masters of their own procedure ( In re ORG , loc . cit . , pp . CARDINAL , per Lord ORG ; pp . CARDINAL - CARDINAL , per PERSON ) . Except for the duty to act fairly , Inspectors are not subject to any set rules or procedures and are free to act at their own discretion . There is no right for a person who is at risk of being criticised by the ORG to cross - examine witnesses ( ibid . , p. CARDINAL , per Lord PERSON ) . It is not necessary for the ORG to put their tentative conclusions to the witnesses in order to give them a chance to refute them . It is sufficient in law for the ORG to put to the witnesses what has been said against them by other persons or in documents to enable them to deal with those criticisms in the course of the investigation ( ORG [ DATE ] CARDINAL Queen ’s Bench CARDINAL ( ORG ) ) .

ORG The Secretary of ORG is empowered by section CARDINAL ( CARDINAL ) ( c ) to decide whether or not to print and publish the Inspectors’ report . Although he has a very wide discretion in deciding whether or not to publish the whole report , he is precluded by section CARDINAL ( CARDINAL ) ( c ) from deciding to publish only parts or a synopsis of it .

Publication may be deferred if there is a possibility that criminal proceedings may be taken , in order to avoid the possibility of prejudice to such proceedings .

ORG The question whether an ORG ’s report should be published is considered in each case on its merits . The ORG ’s general policy is to publish reports on public companies wherever possible , as being matters of public interest .

Members of a limited company are in a privileged legal position because their liability is limited . In view of this privilege , where the Secretary of ORG has decided that the affairs of a large public company should be investigated under the provisions of section CARDINAL of the CARDINAL Act , because he is satisfied that the circumstances are of sufficient concern to warrant the substantial cost of an inspection , it is important that the Inspectors’ report explaining the underlying facts and the conclusions that they draw from them should be made public unless there are overriding reasons to the contrary .

ORG The defence of privilege or immunity in defamation cases rests upon the idea that conduct which would otherwise be actionable escapes liability because the defendant is acting in furtherance of some interest of social importance which is entitled to protection , even at the expense of uncompensated harm to the plaintiff ’s reputation . If the interest is CARDINAL of paramount importance , considerations of policy may require that the defendant ’s immunity for false statements be absolute , without regard to his purpose or motive or the reasonableness of his conduct . Such is the nature of the absolute protection afforded to judicial and parliamentary proceedings . Also on grounds of public policy , a defence of qualified privilege may lie when the publication is made by a person in good faith and in the discharge of some public or private duty . The condition attached to qualified privilege is that it must be exercised in a reasonable manner and for a proper purpose . A publisher with malicious intent would lose the defence of qualified privilege .

ORG In re ORG ( loc . cit . , at p. CARDINAL G ) Lord PERSON stated :

" Inspectors should make their report with courage and frankness , keeping nothing back . The public interest demands it . They need have no fear because their report , so far as I can judge , is protected by an absolute privilege ... "

Even if , contrary to Lord PERSON ’s observation , the Inspectors’ report is subject to a qualified rather than an absolute privilege , neither the ORG nor the Secretary of ORG could be successfully sued for defamation in publishing the report , except upon proof of express malice ( that is , the desire to injure as the dominant motive for the defamatory publication : see PERSON v. PERSON [ DATE ] Appeal Cases CARDINAL ( ORG ) , at p. CARDINAL , per Lord PERSON ) .

ORG The grounds on which administrative action ( such as the Secretary of ORG ’s decision to publish the report ) is subject to judicial control are the CARDINAL traditional grounds of judicial review described by Lord PERSON in ORG Unions v. Minister for ORG ( [ DATE ] Appeal Cases CARDINAL ( ORG ) , at pp . CARDINAL - CARDINAL ) . These grounds are illegality , irrationality and procedural impropriety .

" Illegality " means that the decision - maker must understand correctly the law that regulates his decision - making power and must give effect to it .

" Irrationality " , or what is often also referred to as " ORG unreasonableness " ( see ORG v. ORG [ DATE ] CARDINAL King ’s Bench CARDINAL ( ORG ) ) , applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it . " ‘ ORG or ORG is a narrowly restricted ground of judicial review of an administrative decision . Where the existence or non - existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable , it is the duty of the court to leave the decision of fact to the public body to whom ORG has entrusted the decision - making power save in a case where it is obvious that the public body , consciously or unconsciously , are acting perversely " ( per Lord PERSON , in NORP v. PERSON , ex parte ORG [ DATE ] Appeal Cases CARDINAL ( ORG ) , p. CARDINAL ) .

" Procedural impropriety " covers failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision , as well as failure to observe procedural rules that are expressly laid down even where such failure does not involve any denial of natural justice .

ORG Judicial review would , for example , provide a remedy if Inspectors under LAW were prejudiced or biased against the subjects of their report ( ORG v. Minister of ORG [ DATE ] Appeal Cases CARDINAL ( ORG ) ) ; or if the ORG reached conclusions which there were no facts to support , or took into account irrelevant considerations , or failed to take account of relevant considerations , or reached conclusions which no reasonable person in their position could have reached ( the PERSON case , loc . cit . ) ; or if their findings have not been properly based on material which has probative value ( PERSON v. Air GPE , loc . cit . ) ; or if the ORG were dishonest or acted in bad faith ( the ORG case , loc . cit . ) ; or if the ORG acted ultra vires or beyond their legal powers ( the PERSON case , loc . cit . ) ; or if the ORG acted against the legitimate expectations of those concerned ( ORG Unions v. Minister for ORG , loc . cit . ) ; or if the ORG acted contrary to the rules of natural justice ( PERSON v. PERSON [ DATE ] Appeal Cases CARDINAL ( ORG ) ) ; or if the ORG acted unfairly ( In re ORG , loc . cit . ; ORG , loc . cit . ; NORP v. Panel on ORG , ex parte ORG [ DATE ] CARDINAL Queen ’s Bench CARDINAL ( ORG ) ) .

However , a mistake of fact could not form the basis of a challenge to an administrative decision by the ORG or the Secretary of ORG unless the fact was a condition precedent to an exercise of jurisdiction , or the fact was the only evidential basis for a decision , or the fact was as to a matter which expressly or impliedly had to be taken into account ( NORP v. ORG , ex parte ORG , ORG , DATE ( ORG ) ) .


CASE OF NATIONAL UNION OF BELGIAN POLICE v. BELGIUM

No violation of Art. 11;No violation of Art. 14+11

The facts of the case may be summarised as follows :

The applicant , ORG , has its headquarters at GPE - Schaerbeek . The union descends from ORG founded in DATE and changed its name in DATE ; in DATE it was constituted in the form of a non - profit - making association within the meaning of the Act of DATE . Associations of this kind have capacity in civil law .

The applicant union is open to all members of the municipal police , including rural policemen , regardless of rank , but members of the CARDINAL State police forces , the criminal police attached to the prosecuting authorities ( police judiciaire près les parquets ) and the gendarmerie , may not at present belong to it . It numbers police superintendents and deputy superintendents amongst its members .

The list of the applicant union ’s members deposited on DATE , in accordance with law , contained the names of CARDINAL persons ; this was not the whole of its membership but only the " active members " , that is to say , those " who are delegated by the sections to represent them at the general meeting " and are alone entitled to vote ( LAW applicant union ’s articles of association annexed to the ORG belge of DATE ) . The applicant union claims to have had CARDINAL paid - up members in DATE and that their numbers fell to CARDINAL in DATE , CARDINAL in DATE , CARDINAL in DATE and CARDINAL in DATE . It is alleged by the applicant union that this steep decline of PERCENT was due specially to the trade union consultation policy contested in the present case . The Government does not dispute the fact of the decline but does not attribute it to the cause put forward by the applicant .

There being CARDINAL men serving in the municipal police – whose establishment provides for CARDINAL - , at DATE the applicant union represented CARDINAL of the members of the force .

The municipal police , whose members are classified as municipal officials , is entrusted both with functions of an administrative and crime - deterrent character , as well as with criminal - police functions . In carrying out its administrative and crime - deterrent duties , the municipal police is directly subject to the municipal authorities and placed under the orders of the burgomasters ; on the other hand , in the exercise of its criminal - police functions , it is subject solely to the authority of the ORG and more especially the judicial authorities ( autorités judiciaires ) .

The CARDINAL State police forces are distinct from the municipal police . The gendarmerie , itself also vested with both administrative police duties ( maintenance of order ) and criminal - police duties , can in addition discharge military duties in certain circumstances and is organised on military lines . The criminal police attached to the prosecuting authorities ( la police judiciaire près les parquets ) has , for its part , exclusively criminal - police ( de police judiciaire ) duties .

The municipal police force amounts to PERCENT of municipal staff and PERCENT of all municipal and provincial staff . At DATE , municipal staff totalled CARDINAL officials to which number were added the staff of municipal social welfare boards ( CARDINAL ) , inter - communal associations ( CARDINAL ) and provinces ( CARDINAL ) . The gendarmerie and criminal police numbered respectively CARDINAL and CARDINAL members as of DATE .

Under LAW of its articles of association , the aim of the applicant union is " any activity directly or indirectly relating to the study , protection , development , improvement and progress of any matter concerning the rights and occupational interests of the NORP police , particularly by means of trade union action . "

ORG is recognised in GPE by LAW and is guaranteed in all fields by LAW DATE . Furthermore , GPE is a party to ORG no . CARDINAL concerning ORG of DATE ) and no . CARDINAL concerning the Application of the Principles of the Right to Organise and to Bargain Collectively ( Act of DATE ) . These various provisions safeguard , inter alia , the right freely to form trade unions , the right to join or not to join them , the right of trade union members freely to elect trade union representatives and the right of trade unions freely to organise their administration .

While therefore in NORP law freedom is the rule for trade unions in matters of founding , organising , recruitment and propaganda , the same is not true of consultation of trade unions by public authorities acting as employers . In order to avoid having to negotiate with an ever increasing number of parties , the public authorities have in fact fixed certain criteria for selection based on the idea of representativeness of trade unions . They have also introduced this principle in several Acts dealing with relations between employees and employers in the private sector , for example the LAW DATE on ORG and ORG , LAW of CARDINAL DATE setting up ORG and the Act of DATE on ORG and ORG .

Apart from a Decree of DATE referred to below ( paragraph CARDINAL ) , the first regulation on trade union consultation in the public sector dates back to LAW of DATE applicable to ORG officials exclusively . The Royal Decree confines consultation to organisations having a seat on a " trade union advisory committee " set up within each ministerial department and a seat in a " general trade union advisory committee " operating under the aegis of the Prime Minister . These committees are consulted on all proposals concerning the status of ORG officials , organisation of services and work , safety , health and improvement of places of work .

The representative character of these trade unions is assessed at CARDINAL levels , first at the level of the different ministerial departments and secondly at the level of the ORG administration as a whole . The sole criterion for representativeness is the number of members , determined by elections held in principle DATE . In fact , the last trade union elections were held in DATE . The elections due to be held in DATE were postponed sine die at the request of the large trade union federations , which had obtained a low percentage of votes in DATE .

In the case of the criminal police attached to the prosecuting authorities , the ORG has reserved the benefit of consultation for the organisations which are confined to members of this force ( Royal Decree of DATE ) ; the Government states that in fact these organisations are in turn affiliated to the CARDINAL large NORP trade union federations . As regards the gendarmerie , LAW para . CARDINAL of the Act of DATE provides that members of the gendarmerie may join only occupational associations composed solely of gendarmes . ORG of the gendarmerie has been recognised as the sole organisation representing members of the corps .

There are no general regulations governing relations of municipal and provincial authorities with trade unions . The municipal authorities are free to set up trade union consultation if they so wish . Some of them , such as the towns of GPE , GPE , ORG , have done so and set up commitees - generally organised like those which operate at national level - on which sit delegates of certain representative trade union organisations . Otherwise there is no organised consultation but trade unions may , as everywhere else in the country , lodge claims or make representations on behalf of a member without any condition of representativeness .

The position proves to be very different as regards relations between ORG , which is the supervisory authority , and the staff of municipalities and provinces .

After a first attempt ( a Bill of DATE ) had failed , trade union consultation was introduced at this level by LAW of DATE . Prior to that there had been no statutory provisions . A Decree issued by the Regent on DATE had set up a trade union consultative committee at ORG . On this committee there were , amongst others , delegates of ORG , including the secretary general of the applicant union ; but the Government states that the commitee was of little importance and soon ceased to meet .

Section CARDINAL of the Act of DATE reads as follows : " The general arrangements to be made by the King ... shall be decreed after consulting representatives of those organisations that best represent the staff of the provinces and municipalities ... The forms of such consultation shall be determined by the King . "

Under the same section the representative organisations are to be consulted on the following subjects : staffing , recruitment and promotion conditions for municipal staff , pecuniary status and salary scales for the staff of provinces and municipalities , general rules governing certain allowances and bonuses , rules governing the adjustment of pay scales and pecuniary status in line with the changes which have occurred since DATE in the pecuniary status of staff of the ministries , conditions for appointment to the posts of police superintendent and deputy superintendent and criteria for up - grading .

Consultation is important on CARDINAL counts . First , the ORG is bound to ask for the opinion of the representative organisations and , secondly , in the course of consultation it informs the representative organisations of its proposals in order that they may make known their opinions before any decision is reached .

The consultation machinery is set in motion for the preparation of every rule - making instrument - Bill , Royal Decree , ministerial decree or circular - which relates to the matters listed above . ORG and ministerial circulars have been formulated in this way , usually concerning the entire staff of provinces and municipalities , but several of them containing measures peculiar to the municipal police and some valid only for that force .

If an organisation is not recognised as representative , it is barred from the consultation procedure but may nonetheless , inter alia , submit claims to the supervisory authority , ask to be heard by it , refer cases to it and make representations on behalf of its members .

The modalities of consultation of trade unions recognised as representative were first fixed by LAW of DATE . This Decree set up a trade union consultation committee attached to ORG , on which the only trade union delegates were the representatives of the CARDINAL large trade union federations listed in the following paragraph ( DATE ) .

The applicant union applied to the ORG d’Etat for a declaration of annulment of the Decree . However , on DATE of the hearing , DATE , the ORG belge published LAW of DATE withdrawing the provision which was being challenged . The case was then removed from the list of the ORG d’Etat .

A Royal Decree of DATE re - organised the trade union consultation in question . While the consultation committee remained , its membership was radically changed in respect of both the number and appointment of representatives . The representatives were no longer to be appointed by specified trade unions but by " the organisations most representative of the staff of the provinces and municipalities " . Article CARDINAL para . CARDINAL specified what was to be understood by " most representative " :

" Those organisations which are open to all staff of the provinces and municipalities and which protect such staff ’s occupational interests shall be deemed to be the organisations most representative thereof . Each such organisation shall make itself known by sending to the Minister of the ORG by registered post , within DATE of publication of this Decree in the ORG belge , a copy of its articles of association and a list of its officers . The Minister of the ORG shall verify whether it complies with the conditions required and shall notify it of his decision . "

CARDINAL trade unions , of which the first CARDINAL have since merged , were recognised as meeting these criteria : ORG ; ORG ( a member of ORG ) ; ORG , ORG ( a member of ORG ) ; and ORG , ORG ( a member of ORG ) .

It is difficult to specify the number of persons affiliated in these various organisations . Some of the applicant union ’s members are also affiliated to CARDINAL or other of the large federations . The Government says that CARDINAL of these federations have CARDINAL policemen as members .

CARDINAL of the trade union organisations recognised as representative have technical committees for the municipal police , which , as occasion arises , deal with problems particular to this force .

On DATE , the applicant union asked the Minister of the ORG to consider it as CARDINAL of the most representative organisations of staff of provinces and municipalities for the purposes of the implementation of the above - mentioned LAW . By letter of DATE the Minister replied as follows : " From the documents you have submitted it does not appear that your organisation fulfils the required conditions , namely that it should be open to all the staff of the provinces and municipalities and protect such staff ’s occupational interests " .

Prior to that , on DATE , the applicant union had applied to the ORG d’Etat for a declaration of annulment of LAW of DATE , alleging that LAW of DATE had been contravened . The applicant contended that LAW , which was drafted in very wide terms , implied that the organisations grouping officials by category and without regard for their opinions should , subject to their being the most representative organisations , be consulted on an equal footing with the organisations in which officials joined together according to their political feelings and without distinction as to their occupations . In the applicant ’s view , the preparatory work to LAW showed that consultation should extend to every representative organisation which protected the occupational interests of staff governed by particular staff regulations . Claiming that CARDINAL of the men in the municipal police belonged to it and that the force had its own regulations and constituted a corps within the personnel of the municipalities ; the applicant thus maintained that it was representative in a twofold way , the number of its members as compared with the number of municipal policemen and the special character of their functions . In the submission of the applicant , the King had acted ultra vires in stipulating that the condition " representative " must be confined to organisations open to the whole of provincial and municipal staff .

The applicant union did not refer to LAW and DATE ( LAW , article DATE ) of the Convention nor to LAW . It submitted , however , albeit in a subsidiary way , that LAW . CARDINAL of LAW violated the principle of trade union freedom in that it made it " obligatory " for police officers to join " political " trade unions .

The Minister of the ORG submitted in reply that Section CARDINAL para . CARDINAL of the Act of DATE provided explicitly for consultation of the organisations most representative of the staff of the provinces and municipalities . The Minister added that the ORG d’Etat , in its opinion no . L CARDINAL , had taken the view that there was no objection to considering as the most representative organisations those which " included staff members of all categories " . The Minister inferred from this that the application was ill - founded .

The ORG d’Etat dismissed the application on DATE . It held that " while the criterion of number advanced by the applicant was acceptable when applied to workers in the private sector or even to civil servants and officials in large government departments belonging to the same hierarchical structure and subject to the same regulations , it can not be accepted in the present case since the officers concerned belong to widely different categories which have no link between them , some being governed by separate regulations " . It further considered " that this diversity of categories and regulations has the effect of making the consultation of organisations representing staff much more difficult ; that , in each category , the persons concerned will tend to claim as many advantages as possible for themselves without paying any heed to the implications of measures on which they are consulted for the position of the other staff members , whereas the authority has to take such implications into account ; that the consultation of the organisations by the ORG can not in most cases serve any useful purpose unless it concerns organisations which comprise staff belonging to all categories and which therefore have to strike some balance in their claims in order to protect the interests of all their members " . It found " that in considering the organisations representing the occupational interests of all staff of the provinces and municipalities to be the organisations most representative of such staff , the Decree being challenged is not contrary to the intention of the statute " ; " that the applicant is in error in still maintaining that the contested provision is contrary to the principle of trade union freedom by making it obligatory for police officers to join political trade unions ; that in fact the contested provision does not oblige police officers to join any trade union nor any particular trade union . "

The judgment ended with the conclusion " that in the organisation of public services the King may confine the consultation of occupational organisations to whichever organisations are the most representative of the staff as a whole , which procedure has repeatedly been given statutory confirmation " ( translated from Recueil des arrêts et avis du Conseil d’Etat , DATE , pp . CARDINAL - CARDINAL ) .

In the meantime a Royal Decree of DATE had abolished the committee provided for in the Decree of CARDINAL DATE , but preserved consultation of the most representative organisations as provided in LAW . CARDINAL of the DATE Decree ; since then , such consultation takes place in writing .

An Act of DATE re - organised the relations between public authorities and trade unions of officials in the service of those authorities . Section I of this LAW provides that the system which the LAW establishes may be made applicable by the King – with certain exceptions one of which concerns the " members of the armed forces " - not only to the staff " of the administration and other government departments " , particularly of the " services which assist the judicial authorities ( pouvoir judiciaire ) " , but also to the staff of the provinces and municipalities including the municipal police .

The LAW establishes a procedure of negotiation ( Chapter II ) and a procedure of consultation LAW ) .

For negotiation , the LAW provides that the King shall establish three " general committees " namely , " ORG " , " ORG " , and " ORG for all Public Services " ( Section CARDINAL ) , as well as " special committees " among which will be committees competent for " questions relating to the staff " of provincial or municipal services ( Section CARDINAL ) . The King shall determine " the composition and operation " of these committees ( Section CARDINAL ) on which only " representative ... organisations " shall sit from the trade union side ( Section CARDINAL ) . Section CARDINAL defines in detail the criteria of representativeness for each of the CARDINAL general committees , LAW for the special committees .

Consultation shall take place within " consultation committees " set up by the King for " services and groups of services comprising not CARDINAL officials " ( Section CARDINAL ) . Section CARDINAL provides that " the trade union organisations represented on a special negotiating committee shall be entitled to appoint delegates to sit on the consultation committees set up within the competence of that committee " .

There will be negotiations on " the basic regulations " concerning " staff administration matters " , " pecuniary status " , " pension schemes " , " relations with trade union organisations " , and " the organisation of the social services " ; on " regulations , internal measures , or directives , of a general nature relating to the subsequent fixing of staff structures , to working TIME or to the organisation of work " ; lastly , on Bills concerning any of these various matters ( Section CARDINAL ) . There will be consultation for " decisions determining the staff structure of the services covered by the consultation committee in question " , " regulations which the King has not specified as basic regulations " , etc . ( LAW ) .

In its observations of CARDINAL DATE , the applicant union expressed the opinion that the present case would " probably become pointless " " if LAW of DATE became applicable to municipal officials " .

At hearings of CARDINAL and CARDINAL DATE , the Government stressed that the application of LAW to provincial and municipal staff would not be an easy matter and would require more time . The Government consider that it may in any case be inferred from the text and the preparatory work of the LAW that even when it becomes applicable to such staff it will not change the trade union status in a way favourable to category - based ORG . In its view , the applicant union will not be entitled to sit on a general or special negotiating committee .

The applicant accordingly now feels that " it is doubtful wether the new law will give just satisfaction to the union " and has so informed ORG .

In its application lodged with ORG on DATE , ORG alleged violation of LAW and CARDINAL of the LAW in conjunction with LAW , article PERCENT CARDINAL ) , in that the NORP authorities refused to recognise it as a representative organisation , thus debarring it from the consultation provided for by LAW of DATE . The union also claimed damages which it provisionally assessed at MONEY .

The Commission declared the application admissible by a final decision of CARDINAL DATE , after having rejected on CARDINAL DATE certain of the preliminary objections made by the respondent Government .

During the examination of the merits the applicant union confined itself to relying on LAW ( LAW ) , both on its own and in conjunction with LAW article DATE ) .

In its report of CARDINAL DATE , the ORG expressed the opinion :

- unanimously , that the ORG , whether acting as " legislator " or " employer " , assumes obligations within the scope of LAW para . CARDINAL ( LAW ;

- by CARDINAL votes to CARDINAL , that the right to consultation and , more generally , freedom to bargain collectively are important and even essential elements of trade union action falling within the scope of LAW para . CARDINAL ( LAW ) ;

- by CARDINAL votes to CARDINAL , that this right to consultation is not however unlimited , the limit being , in the case of the applicant union , the existence of an objective criterion for representativeness ;

- unanimously , that the regulations at issue on trade union consultation in GPE do not constitute a breach of LAW para . CARDINAL ( LAW ;

- unanimously , that the difference in treatment introduced by NORP legislation between different categories of unions is justified in the ( article DATE ) of the LAW taken together .

The report contains a separate concurring opinion to which CARDINAL other members of the Commission subscribed .

The Government made the following final submissions at the oral hearing on CARDINAL DATE in the TIME :

" DATE it please the ORG :

- in the first place , LAW ( LAW ) does not apply in the present case and there is therefore no reason to consider whether there has been violation of LAW , taken in conjunction with LAW ( article DATE ) ;

- alternatively , there has been violation neither of LAW , ( LAW ) , nor of LAW in conjunction with LAW ( article DATE ) . "


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

DATE , the applicant 's aunt owned a farm in the GPE district which comprised a plot of land , a dwelling house and several farm buildings . The land was nationalised by GPE in DATE and the buildings were considered as abandoned . In DATE a third person bought from the local administration a barn and a wood shelter belonging to the estate ; he subsequently converted the barn into a dwelling house . Throughout the NORP period , most of the estate was kept and operated by a co - operative agricultural society .

Following the restoration of GPE 's independence in DATE , the applicant 's mother , relying on the new property reform and denationalisation laws , sought the return of both the buildings and the land . In DATE , she got back a residential house , but not the remaining buildings , since they were already owned by other persons . Moreover , in DATE or DATE a certain PERSON privatised another CARDINAL buildings previously belonging to the estate in accordance with privatisation agreements concluded between him and the co - operative society according to the laws then in force .

In DATE the applicant , acting on behalf of her mother , applied to ORG of the NORP municipality requesting that the land be restored within its exact historical boundaries , as they stood in DATE . This request was refused .

The applicant 's mother died on DATE , leaving the applicant as her sole heir . Later , on DATE , GPE legally declared the applicant her mother 's successor .

On DATE the applicant brought an action before ORG against CARDINAL co - defendants : the district council of GPE , the local municipality of GPE , the land commission of the latter , the co - operative society and the successor of the present owner of the barn and the shelter .

The first hearing was held by ORG on DATE . At this hearing , some of the defendants recognised the applicant 's claim , and the applicant herself asked the court to conclude the examination of her claim as soon as possible . However , the proceedings were subsequently postponed CARDINAL times , namely :

( a ) on DATE , until DATE in order for the parties to see the estate by themselves and to clarify certain points in their submissions ;

( b ) on DATE , sine die ( in fact until DATE ) – in order to await an official confirmation of the applicant 's inheritance status by ORG ;

( c ) on DATE , sine die ( in fact until DATE ) – when the court , motu proprio , declared J. the sixth co - defendant in the case since the applicant claimed ownership rights to the buildings privatised by him ; however , the court established that ORG had died and adjourned the proceedings pending his succession case before another court ;

( d ) on DATE , until DATE in order to invite ORG of ORG to join the proceedings as CARDINAL of the co - defendants and to compel PERSON 's successor to submit the judgment of CARDINAL DATE concerning her inheritance rights ;

( e ) on DATE , until DATE – upon the request of ORG in order for them to prepare all necessary documents ;

( f ) on DATE , until DATE after the court had , at the applicant 's request , declared J. 's widow – now legally confirmed in her inheritance rights – a defendant and ordered her to join the case ;

( g ) on DATE , until DATE upon the request of both parties , in order to submit further evidence ;

( h ) on DATE , until DATE upon the applicant 's request ( she in fact asked for a postponement sine die because , according to her , she could not quickly obtain evidence from some state authorities ) ;

( i ) on DATE , until DATE upon the request of the applicant 's counsel ( who explained that she was unable to attend ) ;

( j ) on DATE , until DATE upon the request of CARDINAL of the defendants , in order to rectify the boundary of the estate and possibly to seek a friendly settlement ;

( k ) on DATE , until DATE because of a repeated absence of the representative of ORG at the hearing ( by a letter of DATE , the court issued a formal warning to this authority and requested it to attend the following hearing ) ;

( l ) on DATE , until DATE of the defendants being absent for medical reasons ( she had previously submitted a medical certificate granting her sick leave from DATE ) ;

( m ) on DATE , until DATE upon the request of ORG since it could not provide a proper representation before the court , and because of the absence of counsel of CARDINAL of the defendants ( despite the applicant 's objections ) ;

( n ) on DATE , until DATE since the defendants had not received the amendments to the applicant 's claim ;

( o ) on DATE until DATE – upon the applicant 's and ORG 's common request , since ORG was absent from the hearing and the applicant deemed it necessary to see the respective land plans owned by ORG ( it appears from the case file that this defendant had nevertheless requested the court to hear the case in its absence ) .

On QUANTITY occasions , on DATE , DATE and DATE , the applicant extended and modified her claim . In DATE and in DATE , she unsuccessfully tried to accelerate the examination of her case by complaining , respectively , to the president of ORG and to ORG about the unreasonable length of the proceedings .

On DATE ORG held a hearing and finally gave a judgment , granting the applicant 's claim in part . In its judgment , the court ordered the defendants to restore to the applicant a part of the plot of land and CARDINAL farm buildings , and declared null and void the privatisation agreements concluded between PERSON and the co - operative society . The remainder of the claim was refused according to ORG and the PERSON on the Return of Real Estate to ORG .

The applicant appealed . On DATE ORG of ORG , after having held a hearing , dismissed the applicant 's appeal . The applicant then filed an appeal on points of law . On DATE the ORG ( Cassation Division ) of ORG , sitting in camera , declared the appeal inadmissible for lack of arguable points of law .


Remainder inadmissible;Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance;Required by interests of justice);Non-pecuniary damage - finding of violation sufficient

Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk;Zdravka Kalaydjieva

The applicant was born in DATE and is currently in prison in the city of GPE , GPE .

On DATE the applicant was arrested on suspicion of kidnapping and murdering a minor , S. During the arrest the applicant sustained light bodily injuries , which were recorded by a forensic medical expert .

On DATE the Bogunsky ORG ordered the applicant ’s detention .

On DATE the applicant was provided with a lawyer .

On DATE the applicant was charged with the above - mentioned crime , following an investigation during which the applicant had shown the police the places in which S. ’s corpse and some of her belongings had been hidden .

On DATE the applicant , allegedly under pressure by the investigator , wrote a letter requesting that he be questioned “ about events that took place at DATE at the address QUANTITY , in GPE ” . In his letter he mentioned that he did not require the assistance of a lawyer during the interview . According to the stamp on the letter it was received by ORG on DATE .

On DATE , allegedly upon the above request , he was questioned by the investigating prosecutor , PERSON . , as a witness about the circumstances of the death of PERSON During this questioning , without a lawyer , the applicant confessed to the murder of PERSON ( The criminal investigation into the murder of PERSON had been initiated on DATE . On DATE PERSON , son of the late PERSON , was questioned by the investigating prosecutor , PERSON . , as a witness and confessed to the murder of his mother . DATE he retracted his confession . On DATE the criminal case against PERSON was closed for lack of corpus delicti . ) In his testimony the applicant submitted that he had needed money and having read in a newspaper about the intention of PERSON to buy an apartment had decided to rob her . Having gone to her home and having found that she had no money , he killed her . The applicant gave numerous details about the apartment , the victim and the way he killed her . TIME questioning stated that he had been told about his duty to state everything he knew about the case and the criminal liability for refusal to give testimony and for giving false testimony under LAW and CARDINAL of LAW . It was also indicated in TIME that the provisions of LAW had been explained to the applicant .

On DATE the applicant , still as a witness , participated without a lawyer in an on - site reconstruction of the events of the murder of PERSON

On DATE the applicant was examined by a forensic expert who did not report any signs of ill - treatment on his body . According to the applicant this report was falsified , given that a previous medical examination conducted on DATE had revealed several injuries on his body , the traces of which could not have disappeared in DATE .

On DATE the applicant was additionally questioned , without a lawyer , by the prosecutor concerning the circumstances of purchasing the knife which the applicant had used to kill PERSON

On DATE the applicant was repeatedly questioned without a lawyer about the knife because it had been established that the shop in which he had allegedly bought it did not sell knives . The applicant changed his testimony and said that he had killed PERSON with another knife taken from his father .

On DATE the investigating prosecutor PERSON . instituted criminal proceedings against the applicant for the murder of PERSON and joined them with the criminal case concerning the kidnapping and murder of S.

On DATE the applicant was charged with both the kidnapping and murder of S. and the murder of PERSON

On CARDINAL DATE the criminal case was referred to ORG , acting as a first - instance court . According to the applicant , at this stage he requested the court to allow his mother to act as his non - legal representative but this request was refused .

During the court hearings the applicant claimed his innocence with respect to the murder of PERSON maintained that he was forced to confess . At the same time , he admitted his guilt in kidnapping PERSON , but claimed that she was killed by some other person whom he knew only by name .

On DATE ORG found the applicant guilty of the kidnapping and CARDINAL murders and sentenced him to life imprisonment . The applicant ’s conviction for murdering PERSON was based on his confessions , which corresponded to the information available to the investigating authorities .

NORP The applicant ’s lawyer , NORP , appealed against that decision . In his cassation appeal , he complained , inter alia , of a violation of the applicant ’s right to defence and of the use of unlawfully obtained evidence by the court . He submitted that the accusation that the applicant had murdered PERSON had been based exclusively on the statements he had made as a witness and had not been supported by any corroborating evidence . Furthermore , he complained that some contradictions in the body of evidence had been ignored by the court , namely that the forensic examination established that PERSON died not DATE while the applicant had allegedly killed her on DATE ; that the newspaper from which the applicant had allegedly learned about the intention of PERSON to buy an apartment was published only on DATE , after the death of PERSON ; that , according to testimonies of witnesses , PERSON was not the kind of person who would let a stranger into her apartment and talk to him frankly about her personal relationships .

The applicant raised similar issues in his cassation appeal . He further complained that the investigation had failed to locate PERSON , who had been his accomplice in the kidnapping case and the murderer of S.

On DATE ORG upheld the decision of the appellate court . In reply to the complaints of the applicant and his lawyer of a violation of the right to defence , the court stated :

“ The arguments of the appeals as to the violation of the right to defence of PERSON during his questioning as a witness of a crime against PERSON are groundless .

Having been arrested on suspicion of committing another crime , on DATE PERSON wrote a letter stating his wish to give testimony voluntarily about the events that took place at DATE at the address GPE , DATE , maidan Rad . Since in his letter he did not indicate what information he wanted to provide , the investigating authorities rightly questioned him as a witness . The provisions of LAW were explained to him . ”

NORP The court further repeated the reasoning of ORG and concluded that the applicant could only have known about the circumstances of the murder of PERSON if he had been the offender himself .

Article CARDINAL

Everyone has the right to legal assistance . Such assistance is provided free of charge in cases envisaged by law . Everyone is free to choose the defender of his or her rights .

In GPE , the advocacy acts to ensure the right to a defence against accusation and to provide legal assistance in deciding cases in courts and other state bodies .

Article CARDINAL

A person shall not bear responsibility for refusing to testify or to explain anything about himself or herself , members of his or her family or close relatives in the degree determined by law .

A suspect , an accused , or a defendant has the right to a defence ...

DATE of the ORG stipulates that the legal representation of a suspect , accused or defendant is obligatory , inter alia , if the possible penalty is a life sentence .

Article CARDINAL of the ORG provides that a person is entitled to refuse to give testimony as a witness about himself or herself .

Article CARDINAL of the ORG provides that a person who has been called as a witness shall

Article CARDINAL of the ORG provides that a witness shall bear criminal responsibility for giving knowingly false testimony .

Article CARDINAL of the ORG provides for the extraordinary review of final judgments , in particular , in the event of serious violations of the procedural law .

Under paragraph CARDINAL of LAW , murder committed by a person who has previously committed a murder shall be punishable by imprisonment for a term of DATE , or life imprisonment .

Under paragraph CARDINAL of Article CARDINAL of the Code any knowingly false testimony by a witness during the inquiry or pre - trial investigation shall be punishable by correctional labour for a term of DATE , or detention for a term of DATE , or restriction of liberty for a term of DATE .

Under LAW a groundless refusal by a witness to testify in court or during a pre - trial investigation shall be punishable by a fine or detention for a term of DATE . At the same time it provides that refusal to testify against himself or herself during an inquiry , pre - trial investigation or in court shall not be criminally liable .

Article CARDINAL of the PERSON provides for additional individual measures with a view to execution of judgments of the ORG , including review of the case by a court and reopening of the judicial proceedings .


The applicant is an NORP national , born in DATE and residing in GPE . He is a lawyer by profession .

A.

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

On DATE ORG ( Bezirksgericht ) dissolved the applicant ’s marriage . The ORG based its decision on an agreement which the applicant and his wife had concluded DATE in court providing , inter alia , for maintenance payments by the applicant to his CARDINAL children .

On DATE the applicant remarried and subsequently adopted the child of his present wife .

On DATE the applicant introduced a request with ORG for reduction of maintenance payments and referred to his new obligation to maintain his present wife and child .

On DATE ORG dismissed the request . On DATE the applicant appealed . On CARDINAL DATE ORG nevertheless appointed a book - keeping expert to assess the applicant ’s income . On DATE the applicant also appealed against this decision . On DATE the ORG heard the parties at the applicant ’s request on the appointment of the expert .

On DATE ORG ( PERSON ) quashed ORG decision of CARDINAL DATE and upheld ORG decision of CARDINAL DATE to appoint a book - keeping expert . As regards the decision of CARDINAL DATE ORG noted that the issue of the reduction of maintenance payments was closely connected with the provisions in the agreement of DATE for the recalculation of maintenance payments . ORG ( Vormundschaftsgericht ) had refused to approve part of the agreement but had failed to decide whether it also disapproved of some remaining provisions relevant to the issue . ORG should therefore have only decided on the applicant ’s request once this issue had been clarified .

On DATE ORG found that there was no need to approve the remaining parts of the agreement of DATE . The applicant appealed against this decision . On DATE ORG quashed ORG decision .

On DATE ORG decided not to give its approval to the remaining part of the agreement of DATE . It found that it was not in the interests of the children to grant them maintenance payments at a fixed percentage of the applicant ’s income . Such a method would not take into account any increasing needs of the children . The applicant appealed against this decision .

On DATE ORG dismissed the applicant ’s appeal but granted an ordinary appeal on points of law ( ordentlicher Revisionsrekurs ) as it considered that there existed no case - law on partial approval of maintenance agreements concluded in the course of divorce proceedings .

On DATE the applicant introduced the appeal on points of law , which was dismissed on DATE by ORG ( Oberster Gerichtshof ) .

On DATE the applicant applied for a time - limit to be fixed for the seeking of the expert opinion . On DATE the court file was transmitted to the appointed expert , who submitted his expert opinion to ORG on DATE .

On DATE ORG dismissed the applicant ’s request for reduction of maintenance payments . The applicant appealed and also challenged the court clerk ( GPE ) for bias .

On DATE ORG quashed ORG decision of DATE . On DATE the President of ORG rejected the applicant ’s challenge for bias .

On DATE ORG again dismissed the applicant ’s request for reduction of maintenance payments . The applicant appealed .

On DATE the applicant again challenged the court clerk dealing with his case for bias , as well as the President of ORG who on DATE had rejected the applicant ’s previous challenge .

On DATE ORG decided the applicant ’s appeal against ORG decision of CARDINAL DATE . It partially confirmed ORG decision and partially granted the applicant a reduction of maintenance payments . On DATE it dismissed the applicant ’s bias contention .

On DATE the applicant introduced an extraordinary appeal on points of law ( außerordentlicher Revisionsrekurs ) , which on DATE was granted by ORG insofar as it concerned the partial reduction of maintenance payments , referring the case back to the first instance court . It considered that the extraordinary appeal granted only if there is insufficient case - law concerning a legal issue was admissible in the interests of legal certainty and uniformity .

On DATE the competent Judge , ORG , requested that the President of ORG be withdrawn from the case for bias . On DATE the applicant filed an application for a time - limit to be set for the delivery of a decision on that request . On DATE the President himself requested that he be withdrawn from the case for bias . Both requests were dismissed . Judge PERSON ’s further appeal , dated CARDINAL DATE , was rejected on DATE .

Meanwhile , on DATE the applicant had filed an application challenging the probable substitute Judge PERSON for bias . Moreover , on DATE , the applicant filed a motion challenging Judge PERSON for bias . On DATE he filed an application for a time - limit to be set for the delivery of a decision on his latter request .

His applications were dismissed on DATE and CARDINAL DATE , respectively . On DATE ORG ( PERSON ) , following the applicant ’s appeal , withdrew Judge PERSON from the case .

On DATE Judge PERSON was appointed to deal with the case but was also challenged for bias by the applicant on DATE . On DATE Judge PERSON was appointed to deal with the case .

On DATE the court clerk issued a summons for a hearing scheduled for DATE .

On DATE the applicant requested a time - limit to be fixed for the continuation of the proceedings . On DATE this application was dismissed because correspondence had crossed .

On DATE and DATE the applicant , and on DATE the defendants , filed pleadings with the court .

On DATE an expert was appointed in order to establish the applicant ’s income and financial position . On DATE the Linz ORG rendered a partial judgment on the maintenance claim , the decision on the remainder being postponed until the delivery of the expert opinion .

On DATE the applicant filed a motion requesting a time - limit to be fixed for the delivery of the decision on the reduction of maintenance payments .

On DATE the applicant , as well as the defendant , appealed against ORG decision of DATE . On DATE ORG , deciding on the remainder of the applicant ’s claim , refused the reduction of the maintenance payments and , instead , ordered their increase . It noted that an exact evaluation of the applicant ’s financial position had not been possible as the applicant had not provided the expert with the necessary documents . Therefore it had to be presumed that the applicant could afford the fixed amount of maintenance because otherwise he would have given the relevant documents to the expert .

On DATE the applicant appealed . On DATE ORG partly granted the appeals of CARDINAL and DATE . The applicant as well as his children appealed from this decision .

On DATE ORG dismissed the appeals . The decision was served on the applicant in DATE .

II . Official liability proceedings

The applicant instituted official liability proceedings ( Amtshaftung ) against the ORG claiming compensation for damages resulting from legal errors and delays caused by the court clerk . His claim related to the written pleadings of DATE , DATE , DATE , CARDINAL DATE , his motions for a time - limit to be fixed of DATE and DATE , and his appeals of CARDINAL DATE , CARDINAL DATE and CARDINAL DATE , which had been prompted by the court clerk ’s conduct . He argued that the ORG was also liable for the proper organisation of court proceedings which had failed in his case because a secondary file concerning only the maintenance matters should have been opened much earlier due to the complexity of the litigation .

On DATE ORG granted compensation in respect of CARDINAL pleadings and appeals . It noted in particular that the delay of DATE , as from CARDINAL DATE , when the applicant had introduced the request for reduction of maintenance payments , until DATE , when the file finally had been transferred to the expert , had been too long , which engaged the ORG ’s liability and obligation to pay damages .

The applicant appealed against this decision insofar as his appeal of DATE against ORG decision of CARDINAL DATE was concerned . He did not appeal against the remainder of the above decision .

On DATE ORG granted the applicant ’s appeal and awarded further damages .