CASE OF BERNH LARSEN HOLDING AS AND OTHERS v. NORWAY

No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for home)

Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

NORP B.L.H. , a holding company , ORG ( together with CARDINAL further companies ) had their business address at FAC , GPE ( GPE ) , at LOC owned by GPE . The companies used a common server and e - mail server ( hereinafter referred to as “ the server ” ) for their respective information technology systems . The server was owned by ORG . It contained the applicant ORG electronic archives and private information ( including private e - mail correspondence ) of employees and other persons working for the companies , which did not have their own administration . They received administrative support from a small number of persons working in ORG operating at the same address .

B.L.H. ’s data were stored on the server in the user areas dedicated to QUANTITY persons : Mr S. , who was B.L.H. ’s Managing Director , and QUANTITY other persons . They were employed by ORG AS – a subsidiary company of B.L.H. – which carried out management services for several companies , including B.L.H. The data in question were accessed by entering those ORG user areas , through their respective user names and passwords .

NORP In DATE the GPE tax office ( ligningskontor ) warned B.L.H. that the company ’s accounts for DATE would be audited . On DATE a meeting was held between representatives of B.L.H. , on the one hand , and the GPE tax office and GPE tax office ( fylkesskattekontor ) , on the other . The meeting took place at B.L.H. ’s offices in GPE . During the meeting the tax authorities presented B.L.H. with a list of questions and demanded that B.L.H. allow the auditors to make a copy of all the data on the server , which contained , inter alia , information on B.L.H. ’s accounts .

NORP The representatives of B.L.H. complied with the request to grant access to the server , including offering the tax authorities the necessary passwords . They refused , however , to comply with the tax authorities’ further demand to supply a mirror copy of the ( entire ) server .

The Managing Director , PERSON , argued , inter alia , that B.L.H. did not own the server but only rented server capacity and that also other companies made use of the server . The Managing Director of Kver , the company owning the server , was called but he too refused to allow the tax authorities to take a mirror copy of the server .

Information and documents stored on the server were in part linked to other companies ( with the necessary access control ) , in part to employees working for the different companies . Access to the home directorates and e - mails ( including the map " private files and pictures " ) belonging to the different employees were protected by passwords .

Thus the server contained information belonging to the applicant companies and also information belonging to other companies and persons .

Following the refusal by B.L.H. and Kver to supply a mirror copy of the server , alternatives to a complete copy of the server were discussed . The discussion related first and foremost to whether the tax authorities would have to limit themselves to demanding copies of the part of the server administered by B.L.H. or persons working for B.L.H. The Managing Director of B.L.H. , PERSON , explained to the tax authorities how they could obtain ( all and only ) the documents belonging to B.L.H.

When Kver , as a co - user and the owner of the server , opposed the tax authorities’ demand to seize the entire server , the tax authorities responded by issuing a notice that Kver would also be subject to a tax audit . They further ordered Kver to “ hand over all electronically stored information ” .

After further discussions , the parties compromised and agreed that the previous months’ backup tape would be handed over to the tax authorities and sealed pending a decision on their complaint . The backup tape contained CARDINAL files in CARDINAL folders , totalling QUANTITY . In the applicant ORG submission , which the Government did not dispute , only a minor part of that information was relevant for the tax audit of B.L.H.

Both Kver and B.L.H. immediately lodged a complaint with ORG , a central tax authority under ORG , and requested the speedy return of the backup tape .

On DATE Kver informed the GPE tax office that CARDINAL other companies , including ORG ( the third applicant company ) , also used the server and had therefore been affected by the seizure of DATE . On DATE the tax office notified those companies that they would also be audited .

On DATE lodged a complaint with ORG .

The ORG gave a decision on each of the applicant ORG complaints on DATE .

As regards Kver and I.O.R. , the ORG withdrew the tax office ’s notice that an audit would be carried out and its demand that those companies hand over data . The ORG observed that the tax audit concerned B.L.H. and that section CARDINAL of LAW ( ligningsloven ) did not authorise the measures at issue where the purpose of the audit was to collect information about third parties .

The ORG confirmed the tax office ’s demand that B.L.H. hand over or give access to the server . Its decision further stated that a representative of this company would have the opportunity to be present during the review of the server by the tax office . The tax office ’s access to each area of the server was to be limited to those areas that were ( also ) used by B.L.H.

NORP In reaching the above conclusion , the ORG noted that ORG had observed , in its letter to ORG , that the term “ document ” in sections CARDINAL - CARDINAL and CARDINAL of LAW was not limited to information appearing on paper , plastic cards and so on , but also covered texts and figures stored electronically on a computer . Furthermore , the duty to hand over documents also applied to electronically stored documents . The tax authorities could choose whether to ask for paper printouts , electronically readable media , or for the documents to be forwarded to their own computers .

In the ORG ’s view , the question at issue concerned the delimitation of the tax authorities’ access to the “ company ’s archives ” under section CARDINAL ( CARDINAL ) ( b ) of the LAW ( see paragraph DATE below ) . In instances where the documents were stored on a server , the server was to be considered as an archive for the purposes of that provision . In the present instance , the tax office had “ seized ” ( “ tatt beslag i ” ) the server and the question was to what extent the tax office could inspect it . Whether an obligation could be imposed under section CARDINAL to hand over each document in the archive required consideration in the specific circumstances .

The ORG moreover noted that a tax subject was not under a duty to produce documents which exclusively concerned the rights and business relationships of other tax subjects . A further limitation was that the documents in question should be relevant to the tax subject ’s tax assessment . Accordingly , documents of exclusively private character fell outside that definition . That distinction was important in ascertaining the extent to which the tax authorities could themselves go through the server ( the archive ) or whether it was for the tax subject to decide which areas of the server should be handed over .

Section CARDINAL - CARDINAL ( CARDINAL ) ( b ) had been added to give the tax authorities an opportunity to act with assertiveness ( “ gå offensivt til verks ” ) when inspecting archives in order to find documents of importance to the activity concerned . It was thus clear that the authority to audit did not just amount to the passive reception of information handed out by the person subjected to the audit .

NORP Moreover , the ORG noted , section CARDINAL of the Act applied to the tax audit of a specific tax subject . The handing over of documents relating to other tax subjects ought to be based on LAW . In instances where the archives were physically separated ( into different parts of the server ) , section CARDINAL did not authorise the imposition of access to the archives of other companies . In the present instance , LAW did not apply .

To the extent that a joint archive was not physically divided but was mixed , the tax subject could not refuse the tax authorities access to the archive . In discussions on the draft legislation , it had been emphasised that the purpose of an audit should not be undermined by the tax subject withholding documents . In the ORG ’s view , this ought also to apply in relation to access to the tax subject ’s archives . The tax subject could thus not refuse the tax authorities access to its archives on the ground that they contained documents concerning other tax subjects . The duty to hand over all documents contained in the archives should , however , be limited to documents of importance to the tax subject ’s tax assessment , see section CARDINAL ( CARDINAL ) and ( CARDINAL ) .

In practice , in order to solve the problem of the tax subject avoiding the inspection of documents in the archives ( the server ) that were insignificant for its tax assessment , the tax subject would be allowed to be present during the review of the archive ( see section CARDINAL ( CARDINAL ) ) . Accordingly , the ORG stated , a representative of B.L.H. was to be present during the tax authorities’ review .

Under LAW , the applicant companies instituted proceedings before ORG , asking it to quash ORG decision of DATE in respect of B.L.H. and to order the return of the backup tape to GPE . On DATE ORG found in favour of the ORG and rejected the applicant ORG appeal .

In its judgment , ORG found that the measure imposed by the tax authorities could comprise the copying of data for subsequent inspection at the tax office to the same extent as on - site access to data on the server could be imposed . It also found that the server in the present instance should be considered in the same way as mixed paper archives .

The applicant companies appealed to ORG , which by a judgment of DATE upheld ORG decision on essentially the same grounds . ORG noted inter alia that the case concerned an inspection by the tax authorities of a taxpayer in connection with a notified tax audit , an area in which the principle of legality ( legalitetsprinsippet ) applied , as did other legal safeguards , including the prohibition of self - incrimination derived from LAW .

On DATE the applicant companies appealed to ORG , disputing in the main the High Court ’s application of the law . It had failed to appreciate that the relevant provisions of section CARDINAL ( CARDINAL ) laid down clear limits for the manner of conduct of a tax inspection , which could be carried out only of the archives of the tax - subject in question , and a demand to hand over documents should be limited to pertinent material contained therein . These limits had been transgressed in the present case .

The threshold for accepting access beyond the relevant company ’s own archives ought to be high , not least because , by reviewing the server , the right to inspect B.L.H. had been extended to other tax subjects that were not being audited , and to any private and confidential information stored on the server . They referred to LAW , according to which interference with “ home ” and “ correspondence ” was not permitted unless it was “ in accordance with the law ” and “ necessary in a NORP society ” . They submitted that , according to ORG judgment in Société Colas Est and Others v. GPE ( no . CARDINAL/CARDINAL , ECHR CARDINALIII ) , DATE also protected companies .

By empowering the authorities to demand copies of the server this would also give them full access to personal data belonging to employees working for different companies as well as any private correspondence that they might have stored on the server or received on their respective e - mail addresses . This aspect of the case also appeared to breach LAW , as well as laws and regulations on the processing of personal data .

ORG Since the imposition of an inspection of the archives of entities others than B.L.H. lacked a basis in section CARDINAL ( CARDINAL ) ( b ) of LAW and LAW , the tax authorities had acted contrary to the national legal provisions relied on .

The application of the mixed - archive doctrine to their case had no legal basis , nor did it follow from clear and established practice . The tax authorities had not documented that there was a mixed archive in the instant case or made any attempt to carry out a prior on - site review in order to determine whether it would be possible to separate B.L.H. ’s archives from those of the other companies . It ought to be a condition for a company accepting the seizure of its archives that adequate attempts be made to restrict the seizure to those areas that concerned the activity at issue . Where a partial inspection on the spot revealed that CARDINAL or more documents had no corroborative significance , the tax authorities could not , according to ORG case - law , seize the archives for further investigation . The same would also follow from LAW .

There had been no legal basis for the authorities to take a full backup copy of the server . LAW had come into force at a time when archives had been paper based . In the absence of the tax subject ’s consent and any prior review , the tax authorities were not entitled to take away an entire paper archive in order to go through all the material at the tax office . The same ought to apply in relation to electronically stored documents , the only difference being that they had to be printed out rather than being photocopied . In this manner the intents and purposes of the LAW would be fully taken into account . The copying of the server in order to subsequently review the entire archives constituted an interference that could not be justified as proportionate and necessary for the purposes of LAW .

In additional written pleadings to ORG dated DATE , the applicant companies stated , inter alia :

“ In this context , it is noted that the references to LAW in the notice of appeal do not constitute a new submission . As the Attorney General also indicates , reference to the LAW was made during the oral proceedings in the lower courts . In ORG the respondent made reference to a decision of ORG which considered the relationship between LAW and the country ’s competition law . The decision is enclosed in the joint case documents before ORG , on page CARDINAL et seq . ”

In its judgment of CARDINAL DATE ( PERSON DATE p. DATE ) ORG upheld the High Court ’s judgment by CARDINAL votes to CARDINAL and held that no award should be made for costs .

Mrs Justice Stabel , whose opinion was endorsed in the main by the other members of the majority , observed that the case raised CARDINAL questions , all related to section CARDINAL ( CARDINAL ) ( b ) of LAW concerning the inspection of records located on a computer server : First , whether the tax authorities could demand access to all the records , regardless of content ; secondly , whether this also applied in cases where the records included material belonging to other taxpayers ; and , thirdly , whether the tax authorities could demand access in order to copy material for subsequent inspection at the tax office .

LAW ( CARDINAL ) ( a ) of LAW empowered the tax authorities to order a tax subject to hand over specific documents of significance for a tax assessment . ORG - paragraph ( b ) provided , in addition to the on - site visit and review of the taxpayer ’s assets , a legal basis for the imposition of a review of the company ’s archives . With the exception of the rule on review of archives ( “ arkivgjennomsyn ” ) in sub - paragraph ( b ) , those provisions were essentially a continuation of the earlier ones of LAW on the duty to provide information and allow special inspections . Since the rule on review of archives had been added during the consideration of the LAW by ORG , the preparatory work had been rather sparse . On the other hand , ORG had pointed out that an order to produce a document pursuant to subparagraph ( a ) presupposed knowledge about the existence of the document , and that the refusal to allow access to review archives constituted a hindrance to effective inspection .

From the context , it transpired that the purpose of the provision in CARDINAL ( CARDINAL ) ( b ) was to provide a basis for the tax authorities to assess whether a tax subject possessed documents which he or she could be ordered to produce under sub - paragraph ( a ) . The duty to produce documents was not limited to accountancy documents . What was decisive was whether the documents were significant for the taxpayer ’s tax assessment and the authorities’ review of the latter . It was clear that also electronic documents were covered by sub - paragraph ( a ) .

ORG - paragraph ( b ) should naturally be interpreted in the light of its purpose . The aim of an inspection was to find out whether an archive contained documents that could be significant for tax assessment purposes . Access should therefore comprise all archives which the tax authorities had reason to assume contained information of significance for the tax assessment , not just those archives or parts of archives that included accountancy material . In the interests of efficiency of the tax audit , access at that stage should be relatively wide . Therefore , the ORG argument that it should be up to each tax subject to give binding indications as to which parts of the archive contained documents of significance for the tax assessment or the audit had to be rejected .

Access to archives could not be compared to search and seizure , as argued by the applicant companies . Measures taken under LAW formed part of ordinary administrative procedures with a view to ensuring that a correct tax assessment was made . An accountancy audit could be initiated independently of any suspicion of the commission of a criminal offence . An order imposed pursuant to section CARDINAL also involved compulsion of a different character than enforcement measures ( “ tvangsmidler ” ) in the context of criminal proceedings , where the prosecution executed the measure by way of enforcement ( “ tvangsgjennomføring ” ) . The principle of the duty to submit tax returns , supplemented by the tax subject ’s duty to provide information under section CARDINAL - CARDINAL , presupposed that it should be possible to verify and depart from the information provided by the tax subject . The consequences of a tax subject ’s refusal to cooperate were exclusively administrative ( discretionary tax assessment ) .

As to the applicants’ argument that the server contained archives belonging to several companies , PERSON observed that where several companies shared an archive and the areas belonging to the different users were clearly separated , the authorisation to access the archives was limited to the tax subject concerned . The problem arose where it was not possible , at least in advance , to ascertain whether the respective parts were clearly separated , typically where the data were stored electronically on a common server . On this point she agreed with and cited ORG distinction between separate and common ( mixed ) archives in its decision of DATE :

" When several tax subjects share an archive , one must , in the opinion of the ORG , distinguish between cases in which the archives are clearly physically separated and cases in which there is a common ( mixed ) archive . Whether or not an area will be considered as clearly separate must be assessed in the specific case . The ORG emphasises that , at present , there is insufficient information in this case to make that assessment . "

Mrs Justice Stabel further agreed with ORG that , as a starting point , where full access was not given to the tax authorities , it should be possible to impose full access if the archive was organised in a manner making the tax authorities dependent on indications by the tax subject in order to identify relevant information . It would be up to the companies whether they wished to organise clearly separate archives or to maintain mixed archives which , in practice , would lead to an extension of the tax authorities’ powers .

In the present case , the companies had disputed that there had been a mixed archive of the type described . They had argued that ORG ’s representative should be able to identify which users had been working on matters pertaining to them and which files had been relevant to their activities . However , it followed from the facts established by ORG that B.L.H. did not have its own administration but was serviced by a small number of persons in ORG AS located at the same address , as was the situation of the other companies using the server in question which was owned and run by GPE . B.L.H. did not have its own user area , but the persons who provided services to the company stored the company ’s documents under their own user names and passwords .

It would have been impossible for the tax authorities to identify immediately the areas of the server where the relevant information was stored . The archive was not organised with clear separations between the different companies , and the distinction between each service person ’s user area was not such as to enable the tax authorities to identify information of significance for the tax assessment . In this situation , ORG had correctly considered that the tax authorities could not depend on B.L.H. indicating the files that might be relevant for the tax assessment of the company . Therefore , the authorities ought to be vested with powers to review all the data on the server . Like ORG , she also attached some weight to the fact that it had been fully possible to organise the cooperation regarding the use of the server differently , for example by applying consistently own user names .

As to the third question , the manner in which the review of the relevant data should take place , PERSON took note of the fact that the backup tape containing all the information on the server had been prepared , sealed and taken to the tax office , pending a final judgment in the case . A backup tape contained all the files stored in the archive but , unlike a mirror copy , not the computer programmes and deleted material , as the tax authorities had initially wanted .

The question was whether the imposition of a duty to allow access with a view to take copies for subsequent inspection at the tax office could be deduced from the right to demand access to the company ’s archives . The answer did not follow directly from section CARDINAL ( CARDINAL ) ( b ) of LAW . Unlike sub - paragraph ( a ) , which expressly stated different alternatives for access to documents , sub - paragraph ( b ) made no mention of how the review should take place . That provision was supplemented by section CARDINAL ( CARDINAL ) , which authorised the tax authorities to demand the presence of a representative of the tax subject in order to provide the necessary guidance , assistance and access to the company ’s LOC .

The question of copying was twofold : did the tax authorities have a right to require a copy and , if so , could the tape then be inspected at the tax office ?

Very little preparatory work had been carried out on that provision and that particular point had not been dealt with . Since archives had been almost exclusively paper based at the time when the provision had been enacted , the question of copying a whole archive had been unlikely to arise . In view of its purpose , there was no reason to interpret the provision to the effect that it hindered the imposition of a requirement to take a copy where the review of a copy was desirable . The central question was whether the measure imposed by the tax authorities could also include the taking of material to the tax office .

The rationale behind sub - paragraph ( b ) DATE namely to remove obstacles to an effective audit occasioned by the requirement on the tax authorities to show that the archives contained documents that were significant for tax assessment purposes – militated strongly in favour of an interpretation adapted to the current situation . According to ORG , an on - site inspection would be particularly time - consuming , and if the authorities were unable to take copies for inspection at the tax office , they would face difficulties in implementing the audit .

It could be questioned whether access would entail such an additional burden for the tax subject that the above interpretation would be incompatible with the principle of legality ( legalitetsprinsippet ) . In the view of PERSON , it was difficult to see that this could be the case . Indeed , the inspection as such would be less burdensome in that the tax subject would at no time be deprived of access to the archive . The requisite safeguards were preserved as the tax subject had a right , under section CARDINAL ( CARDINAL ) of LAW , to be notified about and to be present during the authorities’ review of the tape . If the measure was the subject of a complaint , the material had to be sealed pending examination of the complaint ( section CARDINAL ( CARDINAL ) ) . In most instances , there was reason to believe that it would also be in the tax subject ’s interest that the review took place at the tax office . In any event , there was little reason to oppose that .

Mrs ORG Stabel agreed , however , that the protection of privacy ( “ personvernhensyn ” ) had to be taken into consideration , because the review of the archive was not limited to accountancy documents but included other documents in the archives which the tax authorities had reason to believe might be of relevance for the tax assessment . However , the tax authorities could also access such sensitive information even if the review were carried out on the tax subject ’s premises . Even though , theoretically , there would always be a danger of abuse , which might be somewhat greater if the copied material were taken to the tax office , that risk was hardly so great as to be decisive .

It had not been alleged that the backup copy contained more data than what would have been accessible had the review been carried out on - site . The legal safeguards described above would be observed during the review . It was further understood that once the review had been completed , the copy would be destroyed and all traces of the contents would be deleted from the tax authorities’ computers and storage devices . In addition , the review was to provide a basis for orders pursuant to section CARDINAL ( CARDINAL ) ( a ) . The tax authorities would not be authorised to withhold documents from among the material that had been taken away unless the tax subject accepted the measure .

The dissenting member of ORG , Mr Justice PERSON , agreed with the view held by the majority that the tax authorities could require B.L.H. to give access in order to enable them to carry out an inspection of the server used jointly by the applicant companies .

As to the further issue of whether the tax authorities could demand a copy of the server on which the archive was stored with a view to subsequent review at the tax office , Mr Justice PERSON observed as follows . In his view , section CARDINAL ( CARDINAL ) ( b ) could not reasonably be understood to mean that it authorised the tax authorities to demand a copy of the archive . The provision was limited to “ review ” . To demand a copy was something else and much more far - reaching .

The reason why the majority in ORG in DATE had been in favour of conferring on the tax authorities a power to search and seize material was that they had believed that the authorities should be able to ensure that important documents had not been “ hidden or destroyed ( notably burned ) ” . If the tax authorities were allowed to demand a copy of the archive , they would in reality be empowered to seize , a power which the majority in ORG in DATE had not wished to give them when removing a provision to that effect before the entry into force of the relevant part of LAW .

He agreed with the majority that the right to review archives under section CARDINAL ( CARDINAL ) ( b ) comprised not only archives containing accountancy material but all archives that potentially contained documents of significance for the tax assessment . This meant that the archived material which the tax authorities could demand to review included a great quantity of sensitive personal data . If the tax authorities were to be empowered to demand the copying of archives , the risk of dissemination and abuse of sensitive personal data would increase considerably beyond what followed from a review on the taxpayer ’s LOC . This applied especially to the copying of electronic archives . The search facilities for an electronic archive were different from those used for a traditional paper - based archive . Even if electronically stored data were deleted , they could be reconstructed . Also , electronically stored data might be disseminated far more easily and effectively than information on paper . The right of the tax subject to be present when the tax authorities opened and reviewed the archive did not constitute a guarantee against abuse . There was no way of ensuring that that right had been respected . Therefore , weighty considerations of legal security and protection of privacy militated against conferring on the tax authorities a right to demand a copy of the archive . As the majority in ORG had pointed out in the context of the legislative amendment in DATE , the requirements of legal security and protection of privacy were an overriding political aim in a democratic society . In particular , since the parliamentary majority had voted strongly against search and seizure , and since copying for subsequent review at the tax office was in reality a form of seizure , Mr Justice PERSON found that the tax authorities clearly should not be empowered to require a copy without the question being first considered by the legislator and a clear statutory power given for copying .

On that ground , Mr Justice PERSON voted for quashing ORG decision of DATE in respect of B.L.H. authorising the copying of the server .

On DATE ORG ( skatteetaten , PERSON ) notified the applicant companies of their intention to open the tape with a view to ordering the production of documents . It notified them of the dates , time and place of the review , its object , certain preparatory processing not involving searching or opening of documents , and the identity of the companies concerned . It also invited them to appoint a common representative to attend the said preparations , and the opening and review of the tape .

In a letter to the applicant companies dated DATE , ORG responded , inter alia , to certain complaints made by the applicant companies in their letter of DATE .

In response to the applicant ORG complaint that the backup tape had been secretly copied , ORG reiterated that they had already informed the applicant companies in a letter of DATE that after their meeting on DATE , the contents of the tape had been copied to hard disk . This had been necessary in order to be able to open and read the files , and the data would be carefully secured pending further proceedings . Except for in the limited context of the criminal investigation described in paragraph CARDINAL below , the files had not been opened and read .

As regards the applicant companies’ demand that either the CARDINAL hard disks in question be handed over to B.L.H. , or the copied material be deleted , ORG replied that they could not see that ORG judgment of CARDINAL DATE would prevent them from copying the contents of the backup tape to hard disk , or that the actual review could be carried out on this instead of the backup tape . They referred to ORG reasoning summarised in paragraph CARDINAL above . The copying of the data onto an independent , free and unused hard disk was necessary in order to be able to carry out an appropriate review of the contents of the backup tape . In that connection , the tax office took note of ORG understanding that , once it had been reviewed , the copy would either be returned or destroyed , and all traces of the contents would be deleted from the tax authorities’ computers and storage devices . ORG reasoning thus appeared to be based on the presumption that the contents of the server could be copied temporarily as described . The tax office would not hand over the hard disks or delete information from the backup tape stored on them until completion of the review .

In reply to a request by the applicant companies for the names of personnel who had dealt with the case , including those who had viewed documents on the backup tape , the tax office stated that the correspondence , faxes and e - mails that the tax authorities had produced in connection with the case indicated sender ’s identity . Moreover , representatives of the tax office had presented themselves by name during meetings and telephone conversations that had taken place . Furthermore , in the context of a separate tax investigation of the applicant companies and other companies within the same ownership sphere that were linked to a certain PERSON and criminal proceedings against the latter , the regional tax office had filed a complaint against him to the police alleging that he had committed aggravated tax fraud . During the criminal investigations the police had obtained a judicial order authorising the seizure of the backup tape . The tax office accepted to assist the police , in accordance with relevant agreements and instructions . The assistance had consisted of the reviewing of the backup tape , during the period DATE , by certain named expert accountants and a tax lawyer . After completion of the work , the police had demanded that the ORG delete all documents stored electronically and shred all paper copies taken . That had been done immediately . In the proceedings before ORG in the present case , the parties agreed to distinguish these from the afore - mentioned criminal proceedings .

ORG agreed with the applicant companies that it would be problematic with respect to the duty of confidentiality if the representative(s ) of all taxpayers present were to be given the opportunity to view the computer screen during the review of documents . For that reason DATE and because it would have made working conditions difficult if the officer had the said representative(s ) just behind his back while working on the backup tape DATE it had been decided that the representative(s ) would not have access to the screen or to read printed documents continuously during the inspection ( section CARDINAL ( CARDINAL ) , first sentence , and section CARDINAL ( CARDINAL ) , second sentence , of LAW ) . The representative(s ) would therefore be directed to another part of the LOC where they could observe the processing but not the documents being reviewed .

As the officers identified documents that the taxpayer would be ordered to produce , the documents would be printed out and listed . After completion of the review , the printed and listed documents would be sorted for each taxpayer in the case complex . The representative of the individual taxpayer would then be given access to the document which concerned him and would , in so far as desirable , be able to comment .

Pursuant to section CARDINAL of LAW ( ligningsloven ) of DATE the tax subject had a general duty to provide relevant information to the tax authorities carefully and loyally and ought to contribute to his or her tax liability being clarified in due time and being complied with . He or she ought to draw the attention of the authority concerned of errors in the assessment and payment of the taxes .

DATE . The disputed measures in the present case had been taken pursuant to section CARDINAL ( CARDINAL ) , which DATE supplementing the duty of information above – authorised the tax authorities to order a taxpayer :

" ( a ) To present , hand out or dispatch its books of account , vouchers , contracts , correspondence , governing board TIME , accountancy minutes and other documents of significance with respect to the tax assessment of the taxpayer and the audit thereof . ...

( b ) To grant access for on - site inspection , survey , review of the ORG archives , estimation etc . of property , constructions , devices with accessories , counting of livestock , stock of goods and raw materials , etc . "

Under section CARDINAL ( CARDINAL ) , when required by the tax authorities , the taxpayer had a duty to attend an investigation as described in LAW CARDINAL ( CARDINAL ) , to provide necessary guidance and assistance and to give access to office and business LOC .

Section CARDINAL ( CARDINAL ) of LAW gave the taxpayer the right to be present during the review of the archive :

" The taxpayer or the party who has an obligation to disclose information shall be given reasonable notification and have the right to be present and express views during the investigation that takes place pursuant to section CARDINAL ( CARDINAL ) ( b ) , or section CARDINAL . This applies only in so far as it may be implemented without risking the objective of the investigation . "

Pursuant to section CARDINAL ( CARDINAL ) , when an investigation had been carried out according inter alia to section CARDINAL , a report or protocol was to be drawn up describing the factual information collected , in so far as it pertained to the relevant tax subject .

A duty of confidentiality of tax information was set out in section CARDINAL ( CARDINAL ) :

“ Everyone who assumes or has assumed a task , post or commission linked to the tax administration shall prevent that persons who are not concerned obtain access to or knowledge of what he in the performance of his work has learned about a person ’s assets or income or other financial- , business- or personal matters . Upon taking up such task , post or commission he shall give a written declaration on whether he is aware of and will comply with the duty of confidentiality . ”

Section CARDINAL - CARDINAL laid down a right to complain in cases where the taxpayer had been ordered to give access to archives pursuant to section CARDINAL ( CARDINAL ) ( b ) :

" A person ordered to provide information or to cooperate with an inspection pursuant to LAW , may lodge a complaint if he considers that he has no duty to comply , or is prohibited by law from doing so . ... "

" The order shall be complied with even if the complaint has not been decided , unless the person who has issued the instruction grants a stay of implementation of the measure . Such a stay shall be granted where the person who has given the order finds that the complaint raises reasonable doubt as to the legality of the order . A stay shall be granted where the order concerns the presentation of documents which are sealed and deposited according to regulations issued by ORG . "

Various provisions supplementing LAW may be found in ORG of DATE no . DATE . Pursuant to LAW , the tax subject ought to be informed about his or her duty to provide information and his right to complain about an order to assist in the audit .

DATE Regulations provided that in the event of a complaint about an order to produce documents the documents in question ought to be placed in a sealed envelope . The person conducting the review could , where appropriate , decide that the envelope should be deposited with him or her until the complaint has been decided . If the complaint was upheld , the envelope ought to be returned . If not , the complainant ought to be informed accordingly . Unless it would lead to considerable delay , the tax subject ought to be given an opportunity to be present when the seal is broken .

DATE in conformity with section CARDINAL - CARDINAL(CARDINAL ) of the LAW the person conducting the review to draw up a report setting out in detail the information that should be included in the report . Under LAW a copy was to be sent to the tax subject .

According to LAW , documents provided to the tax authorities pursuant to section CARDINAL of the Act ought to be returned as soon as possible , possibly after copies had been taken of specific documents deemed to be of significance for the tax assessment or the tax audit .

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

“ Personal data undergoing automatic processing shall be :

a. obtained and processed fairly and lawfully ;

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

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

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

Article CARDINAL on “ Data security ” states :

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

DATE , providing for “ Additional safeguards for the data subject ” , reads :

“ Any person shall be enabled :

a. to establish the existence of an automated personal data file , its main purposes , as well as the identity and habitual residence or principal place of business of the controller of the file ;

b. to obtain at reasonable intervals and without excessive delay or expense confirmation of whether personal data relating to him are stored in the automated data file as well as communication to him of such data in an intelligible form ;

c. to obtain , as the case may be , rectification or erasure of such data if these have been processed contrary to the provisions of domestic law giving effect to the basic principles set out in DATE and CARDINAL of this convention ;

d. to have a remedy if a request for confirmation or , as the case may be , communication , rectification or erasure as referred to in paragraphs b and c of this article is not complied with . ”

Article CARDINAL , setting out the conditions for “ Exceptions and restrictions ” , provides :

“ CARDINAL . No exception to the provisions of Articles CARDINAL , CARDINAL and CARDINAL of this convention shall be allowed except within the limits defined in this article .

Derogation from the provisions of ORG CARDINAL , CARDINAL and CARDINAL of this convention shall be allowed when such derogation is provided for by the law of the ORG and constitutes a necessary measure in a NORP society in the interests of :

a. protecting ORG security , public safety , the monetary interests of the ORG or the suppression of criminal offences ;

b. protecting the data subject or the rights and freedoms of others .

Restrictions on the exercise of the rights specified in DATE , paragraphs b , c and d , may be provided by law with respect to automated personal data files used for statistics or for scientific research purposes when there is obviously no risk of an infringement of the privacy of the data subjects . ”


The applicant was born in DATE . He is currently detained in FAC .

The applicant was suspected of being involved in an armed robbery . On DATE police officers from the organised crime unit of ORG conducted an operation and the applicant was arrested . At the time of his arrest , the applicant was at a real estate office , owned by CARDINAL of his relatives . Many of his relatives , including his children , were in this office at the relevant time . The applicant was allegedly beaten severely on his neck and back during his arrest . He was subsequently taken to ORG in GPE , without having a medical examination .

The applicant was allegedly blindfolded and interrogated in the security directorate building . During his interrogation , it is alleged that the applicant was stripped naked , punched , beaten with a truncheon , and had his testicles squeezed . However , the ORG maintained that the applicant 's statement was taken in the presence of his lawyer , PERSON .

On DATE the applicant was taken to ORG where he was examined by a doctor . According to his report , the doctor found no signs of injury on the applicant 's body . The same day , he was placed in detention on remand .

In DATE , complaining of a stiff neck and facial paralysis , the applicant went to see the prison doctor . The doctor transferred him to ORG .

On DATE the applicant filed a complaint with the public prosecutor and maintained that he had been severely beaten during his arrest .

Following certain medical tests , on DATE the ORG delivered its report , in which it was stated that the applicant was suffering from post - traumatic vertebral disorders and that he had an old fracture on his CCARDINAL vertebrae .

On DATE the applicant gave a statement to the public prosecutor , and repeated his allegations . He maintained that he had been severely beaten on his neck during his arrest .

NORP The public prosecutor took statements from the eye - witnesses to the applicant 's arrest and the QUANTITY police officers involved . In their statements taken on DATE , the applicant 's son GPE , his daughter ORG , his brother - in - law GPE and sister - in - law GPE explained to the prosecutor that they had seen the police officers beat the applicant heavily on the neck . On DATE the prosecutor took statements from CARDINAL officers , PERSON and GPE , who had been involved in the applicant 's arrest . The officers denied the accusations . Subsequently , on DATE and CARDINAL DATE , respectively , PERSON and GPE , the CARDINAL other police officers involved in the applicant 's arrest , gave identical statements to the public prosecutor and denied the allegations .

Upon the request of the public prosecutor , ORG prepared a final report concerning the applicant 's injuries . In its report dated DATE , ORG concluded that , although the applicant 's injuries did not constitute a danger to his life , he was unfit to work for DATE . The fracture on the applicant 's CCARDINAL vertebrae and the disorders on his vertebras were estimated to be DATE on DATE . It was also indicated that it had not been medically possible to determine the exact date of the incident . While drafting this report , ORG based itself solely on the report of ORG , dated DATE .

On DATE the public prosecutor filed an indictment with ORG and initiated criminal proceedings against the QUANTITY police officers for ill - treatment .

In a hearing held before ORG on DATE , the accused police officers PERSON and PERSON appeared before the court and denied the accusations . Neither the applicant nor his witnesses were present at this hearing .

On DATE the applicant 's children GPE and GPE appeared before the court . They explained that they had seen the police officers beat their father on the back and particularly on his neck . They told the court that they could identify the police officers who had beaten him if they met them face to face . The accused police officers were not present at this hearing .

On DATE the applicant 's statement was taken by ORG . He repeated his allegations of ill - treatment .

On DATE the accused police officer PERSON 's statement was taken on commission before ORG . He denied the accusations .

On DATE ORG decided that it lacked jurisdiction and transferred the case file to ORG .

On DATE the proceedings against the CARDINAL accused police officers were resumed before ORG .

On DATE the applicant 's statement was taken once again before ORG .

On DATE ORG took the statement of PERSON on commission .

On DATE ORG heard the statements of the CARDINAL accused officers , PERSON and PERSON

On DATE the applicant 's children GPE and GPE testified once again that that they had seen their father being beaten during his arrest . However , they explained that , as a long time had passed , they would no longer be able to recognise the police officers .

On DATE ORG took a statement from GPE , the fourth accused police officer . Before the court , PERSON denied the allegations . On DATE , the court delivered its judgment and acquitted the police officers of the charges against them on account of a lack of evidence .

On DATE ORG rejected the applicant 's appeal request .


Mr ORG was born in DATE and lives in PERSON . Since DATE he has worked as a bus driver .

The applicant met PERSON in DATE . They were friends but did not have a steady relationship . On DATE PERSON gave birth to a daughter , PERSON , of whom the applicant was the father . The applicant visited PERSON and the child at the maternity ward on CARDINAL occasion . In DATE he met PERSON twice at K.W. ’s home . He also attended PERSON ’s christening . During DATE , he once looked after PERSON for TIME . No further contacts took place between the applicant and his daughter that year .

As appears from a report by ORG ( socialnämnden ) of PERSON ( see paragraph CARDINAL below ) , PERSON claimed that the applicant had a problem with alcohol and considered it inappropriate that he met the daughter unless he was sober . The applicant maintained that he gave up his attempts to see PERSON , in part because he felt obstructed by PERSON , in part because his continued commitment to the daughter had been undermined by difficulties in his job . He had also had problems with alcohol .

According to the applicant , these problems ceased when he met PERSON in DATE . She had a DATE son . They started cohabiting in DATE .

In DATE PERSON met PERSON They began to live together in DATE . PERSON and PERSON married in DATE .

The applicant met his daughter once in DATE . He wished to see her more often but PERSON allegedly opposed further contacts . However , the applicant saw the daughter from time to time DATE when he and PERSON took her son to his childminder , who lived close to PERSON ’s childminder . The applicant met PERSON again in DATE when she attended PERSON ’s son ’s birthday party .

Since PERSON allegedly refused the applicant access to PERSON , he contacted the social authorities in GPE in DATE and asked for help in arranging for access to M. In DATE the applicant and PERSON met once at the social welfare office to discuss the matter . PERSON expressed the wish that the applicant should not have access to his daughter yet . The PERSON responsible social worker had some further contacts with the applicant and PERSON separately in DATE , but no meetings took place between the applicant and PERSON As appears from the relevant diary entries , he contacted the authority concerned once DATE , at the most .

NORP In DATE , PERSON applied to ORG ( tingsrätten ) of PERSON for permission to adopt PERSON In DATE the applicant , who objected , requested ORG to grant him access . The court decided to obtain an opinion from ORG , section DATE ) and to adjourn its examination of the question of access pending the outcome of the adoption proceedings .

The Council carried out an investigation during which it heard the applicant ( Chapter CARDINAL , section CARDINAL , of LAW ) , PERSON and PERSON In an opinion of DATE , the ORG concluded that adoption of PERSON by ORG would not be in the child ’s best interests and , accordingly , recommended ORG to reject PERSON ’s application . In reaching this conclusion , the ORG had regard to the following considerations .

In the first place , it was observed that PERSON and PERSON had been living together for DATE and had been married since DATE . It appeared that their marriage was stable and harmonious . PERSON had become PERSON ’s psychological father and had feelings for her as though she was his own child . PERSON considered it appropriate to confirm this by adopting her and thereby secure her position within the family .

The report further noted that the applicant seemed to have a stable relationship with ORG and her son . He had affirmed that he had always had an interest in his daughter but that , for DATE , he had not had the energy to have contact with her because of his difficult situation . He was opposed to adoption and considered that his daughter had a right to know her natural father . The applicant was aware of the fact that the contact had to be developed cautiously over a certain period .

In addition , the report observed :

“ The investigators are of the opinion that [ M. ] , like all other children , has a right to know her descent . It is also important that she be informed as early as possible . Thus , we disagree with [ K.W. ’s ] and [ ORG ’s ] opinion that it is better for [ M. ] to wait . On the contrary , we believe that , in all probability , it will be a traumatic experience for [ M. ] to be told , in her teens or as an adult , that [ M.W. ] is not her natural father . We also consider that [ M. ] has a right to get to know her father and his family . We do not share [ K.W. ’s ] and [ PERSON ’s ] fears that [ M. ] would become distant from [ PERSON ] , although it would be natural for her to react in CARDINAL way or another . However , we are of the opinion that it could be beneficial for [ M. ] to get to know her father and his family . Her feeling of belonging to [ M.W. ] does not , for that reason , have to be changed and [ M.W. ] will probably always be [ M. ’s ] psychological father .

The investigators do not consider that there is question of making an assessment of who is the ‘ best’ father but rather a matter related to the right to know , and to enjoy access to one ’s descent . Therefore we do not find it appropriate to support ORG ’s request to adopt M. ”

ORG held a hearing on DATE during which it heard the applicant ( Chapter CARDINAL , section CARDINAL , of LAW ) and PERSON By decision of CARDINAL DATE , the court granted PERSON permission to adopt PERSON under LAW , section CARDINAL , of LAW . The court gave the following reasons :

“ The investigation in the case shows that [ M. ] since birth has lived with [ K.W. ] and that [ M.W. ] has taken part in the care of [ M. ] since she was DATE . According to the information received , [ M. ] sees [ PERSON ] as her father . [ The applicant ] appears to have met [ M. ] occasionally in the beginning , but access has thereafter practically ceased . In these circumstances , PERSON can not be considered to have such a need of contact with [ the applicant ] as to constitute an impediment to adoption .

For these reasons , and since adoption must otherwise be considered to be in her interest , the application shall be granted . ”

On DATE ORG ( PERSON hovrätt ) upheld ORG decision . On DATE ORG ( ORG domstolen ) refused leave to appeal .

General provisions on custody and access are to be found in LAW of LAW . Section CARDINAL provides that , from birth , the custody of a child rests with the child ’s parents , if they are married , or its mother , if the parents are not married . According to section CARDINAL , unmarried parents may obtain joint custody on application .

Under LAW , section CARDINAL , the child ’s custodian shall see to it that the child ’s need of access to , inter alia , a parent who does not have custody is satisfied to the largest possible extent . If the custodian objects to the access requested by a parent who does not have custody , the courts shall , on an action brought by the latter parent , determine the question of access in keeping with the child ’s best interests .

Chapter CARDINAL of the Parental Code contains provisions on adoption . Section CARDINAL provides that a spouse may , with the consent of the other spouse , adopt the other spouse ’s child . According to section MONEY ) , a child who has not attained the age of DATE may not be adopted without the consent of its parents . Such consent is however not required from a parent who does not have custody of the child .

Under LAW , section CARDINAL , the competent court is to examine whether adoption is appropriate and may grant permission only if it is to the CARDINAL advantage of the child and if the prospective adopter has brought up the child or intends to do so or if there are special reasons for the adoption in view of the special relationship between the adopter and the child .

According to LAW , section CARDINAL , an adopted child is for legal purposes regarded as the adopter ’s child and not that of the natural parent , except where the natural parent is the adopter ’s spouse . Where this exception does not apply , the rights of access enjoyed by the natural parents to the child cease by virtue of the adoption .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens

The applicant was born in DATE and lives in ORG .

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

The applicant was a public servant working for ORG ( “ FAC ) . He was laid off following disciplinary proceedings . On DATE he instituted proceedings before ORG against ORG and ORG ( “ The Ministry ” ) and the ORG seeking the annulment of the decision on termination of his employment contract together with all the rights and benefits stemming from the termination of the contract .

On DATE the first hearing was held .

On DATE the court issued a decision after the applicant withdrew his claim against ORG .

DATE and DATE the first - instance court held CARDINAL hearings . In addition , in DATE and DATE CARDINAL hearings were postponed on the request of the defendant party . A hearing was held on DATE .

On DATE the first - instance court rendered a judgment rejecting the applicant ’s request . He appealed .

On DATE ORG upheld the appeal in part and remitted the case for re - examination . The court remitted part of the case because a preliminary submission of the defendant had not been sent to the applicant and he could therefore not submit his comments on the matter .

On DATE the first - instance court held a hearing and rendered a judgment . The court found the first - instance disciplinary decision ( see paragraph CARDINAL above ) to be lawful and the second - instance decision to be unlawful . Accordingly the court concluded that the applicant ’s employment contract had been terminated lawfully , however the decision on termination became final only when the judgment became final . The court therefore found that the applicant was entitled to the employment rights and benefits for the relevant period . The applicant appealed .

On DATE ORG issued a corrigendum of the judgment .

On DATE ORG delivered a judgment . As the applicant kept lodging new requests concerning his rights and benefits throughout the proceedings the appeal court considered one such request in the appeal as a request for a supplementary judgment . The court rejected the remainder of the appeal and in this part the judgment became final . The applicant lodged an appeal on points of law .

On DATE ORG rejected the appeal on points of law on procedural grounds . The applicant appealed .

On DATE ORG upheld the appeal . The appeal on points of law was sent to ORG .

On DATE ORG rejected the appeal on points of law . The applicant lodged a constitutional appeal .

On DATE the first - instance court issued a judgment ( see paragraph CARDINAL above ) . The applicant appealed .

On DATE the appeal was rejected . The appeal court found inter alia that the applicant had been requesting rights and benefits after the appeal judgment became final without any grounds .

On DATE ORG rejected the constitutional appeal .

On DATE the applicant ’s former employer instituted proceedings against him before ORG seeking the restitution of work - related material following the dismissal .

On DATE ORG issued a decision ordering the applicant to return the disputed material . The applicant appealed .

On DATE the court held a hearing and annulled the decision . The plaintiff appealed .

On DATE ORG rejected the appeal .

On DATE a decision was issued , whereby due to lack of jurisdiction the case was transferred to ORG .

On DATE the applicant lodged a counter claim seeking payment for the updates he made to a computer and car expenses .

On DATE the proceedings were stayed . The proceedings resumed on DATE .

On DATE ORG issued a decision on termination of proceedings following the withdrawal of the claim by the plaintiff . The applicant , however , decided to pursue his counter claim .

On DATE the ORG issued a decision on lack of jurisdiction . The case was transferred to ORG .

DATE and DATE ORG held CARDINAL hearings .

After the last hearing the court rendered a judgment upholding the applicant ’s request in part . Both parties appealed .

On DATE the Higher Labour and ORG upheld the appeals and remitted the case for re - examination .

On DATE ORG held a hearing and rendered a judgment upholding the applicant ’s request in part . An appeal was lodged .

On DATE the Higher Labour and ORG rendered a judgment .

For relevant domestic law see PERSON v. GPE ( no . CARDINAL ,

DATE ) .


The applicant is a NORP national born in DATE . She is unemployed and resides in PERSON .

A.

The applicant and her husband agreed to transfer the tenancy of an apartment situated at FAC DATE in PERSON to an individual . The latter orally promised to the applicant that her family could move to a smaller apartment situated at FAC in LOC .

On DATE the applicant and her husband signed a formal agreement according to which the right to use the apartment situated at GPE street DATE would be transferred to the aforesaid individual as from DATE . Section III § CARDINAL of the agreement stated that the applicant and her husband were liable to pay the rent until the agreement became operative , and that after the transfer their address would be GPE street CARDINAL . The agreement was signed in the presence of a representative of the co - operative which owns the apartment situated at GPE street DATE . ORG

Subsequently the applicant found out that her family could not move into the apartment situated at GPE street CARDINAL as it was occupied by another person . She therefore challenged the agreement of DATE before ORG súd - “ the ORG ” ) on the ground that the individual concerned had made her sign the agreement under false pretences .

On DATE ORG dismissed the applicant ’s action . At the hearing a representative of the co - operative concerned stated that the applicant and her husband had signed the agreement of their own free will and without any reservations . Neither this witness nor the CARDINAL other witnesses heard by the court were in a position to confirm the applicant ’s allegation that she had been promised the right to live in the apartment situated at GPE street CARDINAL . Since there was no evidence which supported the LOC allegation , the court concluded that the applicant had failed to show that she and her husband had concluded the agreement under circumstances which could affect its validity within the meaning of Sections CARDINAL § CARDINAL and CARDINAL of LAW ( see “ Relevant domestic law “ below ) .

The applicant appealed . She alleged that the individual who had offered them the deal had acted in a fraudulent way and invoked Sections CARDINAL , CARDINAL § CARDINAL and CARDINAL of LAW .

On DATE the ORG ( Krajský súd - “ ORG “ ) upheld ORG judgment of DATE . ORG found that ORG had established all relevant facts of the applicant ’s case with sufficient certainty , and that it had assessed them correctly from the legal point of view . In particular , ORG noted that CARDINAL witnesses had confirmed that the applicant and her husband had signed the agreement of their own free will . It found no evidence indicating that the agreement was void for any of the reasons set out in Sections CARDINAL and CARDINAL of LAW .

In ORG view , Section III § CARDINAL of the agreement of DATE referred to GPE street CARDINAL as the applicant ’s future address solely in the context of arrangements regarding the advance payments of the rent for the apartment situated at GPE street DATE until the applicant ’s departure from that apartment . ORG held it therefore for irrelevant that the applicant could not actually move into the apartment situated at GPE street CARDINAL .

On DATE ORG ordered the applicant to vacate the apartment situated at GPE street DATE . On DATE ORG upheld this decision . Both courts established , with reference to the reasons set out in their judgments of DATE and DATE respectively , that the applicant and her husband had transferred the right to use the apartment in question to another individual and concluded that they lived in it without any legal ground .

B. Relevant domestic law

The following provisions of LAW are relevant in the present case :

Section CARDINAL § CARDINAL provides that the exercise of civil rights and obligations must not , unless there is a relevant legal ground for it , interfere with justified rights and interests of others and that it must not be contrary to boni mores .

Under LAW , public authorities shall ensure that civil rights and obligations are not infringed .

Pursuant to LAW , for a legal act to be valid , it has to be carried out freely , with serious intention , certainly and clearly .

Under LAW § CARDINAL , any legal act the subject of which can not be attained is to be considered as being void .

Section CARDINAL provides that a legal act is void if , by its nature or contents , it is contrary to or circumvents the law , or if it is contrary to boni mores .


Violation of Art. 6-1 (non-enforcement);Remainder inadmissible;Pecuniary damage - financial award;Non-pecuniary damage - financial award

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

The applicant receives an old - age pension . The Law on Calculating and Upgrading State Pensions of DATE ( the “ Pensions Law ” ) introduced , since DATE , a new method of calculating pensions . This method , “ Individual Pensioner Coefficient ” ( “ ORG ” ) , was meant to link a person ’s pension to his previous earnings .

On DATE the applicant brought proceedings against the PERSON labour and social development authority ( Департамент труда и социального развития ) before ORG . He argued that his ORG should be fixed at TIME , which would result in an increase in his pension .

ORG found for the applicant and ordered the defendant authority to re - calculate the applicant ’s pension from DATE based on the ORG equal to PERCENT and pay the arrears of MONEY . According to the applicant and the documents submitted by him , the judgment was dated DATE and came into force on DATE . According to the ORG , the judgment was dated DATE and came into force on DATE .

On DATE ORG issued a writ of execution . On DATE the PERSON bailiff ’s service instituted enforcement proceedings . As the payments in enforcement of the judgment had not been made the applicant complained to various authorities . In letters of DATE and DATE the enforcement proceedings supervision department of the GPE region division of ORG informed him that the judgment debt would be paid to him upon receipt of funds from the ORG budget .

According to the ORG , the PERSON labour and social development authority lodged an application with ORG for reconsideration of the judgment given in the applicant ’s case due to discovery of new circumstances . The authority argued that such a circumstance was an instruction of ORG DATE , which interpreted LAW in a way different from that in the judgment . On DATE ORG granted the authority ’s application and quashed the judgment due to discovery of new circumstances , notably the above ministerial instruction .

According to the applicant , he was never informed of the court decision of DATE .

On DATE the PERSON bailiff ’s service terminated the enforcement proceedings . It stated in its decision as follows :

“ The proceedings [ instituted on the basis of the writ of execution in favour of A. K. Sukhobokov ] should be considered as terminated in connection with remitting the writ of execution , without enforcement , at the request of the court .

On the basis of the foregoing , being governed by LAW ) of LAW , decided that :

NORP The enforcement proceedings no . ... should be considered as terminated .

NORP The present decision may be appealed against to a relevant court within a DATE term .

NORP The enforcement proceedings [ file ] should be transferred to the archive .

The writ of execution no . ... issued by the Volgodonsk ORG should be remitted to ORG ... ”

According to the applicant , he received a copy of that decision on DATE .

According to the applicant , the amount of his DATE pension was MONEY as of DATE .

Section CARDINAL of LAW of DATE provides that a bailiff ’s order on the institution of enforcement proceedings must fix a time - limit for the defendant ’s voluntary compliance with a writ of execution . The time - limit may not exceed DATE . The bailiff must also warn the defendant that coercive action will follow , should the defendant fail to comply with the time - limit .

Under LAW of the LAW , the enforcement proceedings should be completed within DATE of the receipt of the writ of execution by the bailiff .

Section CARDINAL of the PERSON reads :

“ CARDINAL . The enforcement proceedings are terminated :

CARDINAL ) NORP by remitting the writ of execution , without enforcement , to the court or other body , by which it was issued , or a creditor at their request ; ”

NORP The bailiff ’s decision on the termination of the enforcement proceedings is subject to appeal to a relevant court within a DATE term . ”


On DATE four armed robbers wearing masks entered the premises of a transport company which employed a number of inmates from ORG who were in semi - detention or on external work assignments . After locking the entire staff in the lavatories , they forced the company manager , whom they had taken hostage , to open the safe , from which they stole MONEY ( ORG ) in cash before making off .

The investigators concentrated their inquiries on some of the prison inmates . CARDINAL of them , ORG , had witnessed the offences and been threatened by the robbers .

On DATE the managing director of the company had a cheque stolen . The home of CARDINAL of the company ’s employees , ORG , was searched and a forged identity card bearing the applicant ’s photo was discovered , together with a sawn - off shotgun . The employee admitted that he had provided the applicant with information to help him commit the armed robbery in return for the sum of FRF CARDINAL,CARDINAL . He also stated that he had recognised the applicant while the offence was being committed despite the mask he had been wearing and that the applicant was the robber who had been carrying the sawn - off shotgun .

On DATE the investigating judge at the GPE tribunal de grande instance decided to have the applicant detained pending trial and issued a warrant of commitment for armed robbery , false imprisonment , and wounding with intent and wilful violence resulting in total unfitness for work for DATE .

On DATE the investigating judge made an order extending detention for DATE from DATE .

NORP The applicant ’s detention was twice extended for a further DATE , on DATE from DATE and on DATE from DATE .

On DATE the investigating judge substituted for the charge of false imprisonment with voluntary release ( an intermediate offence ( délit ) ) the more serious CARDINAL of false imprisonment ( crime ) and made a partial discharge order . In accordance with LAW , he ordered that the file be transferred to the public prosecutor ’s office at ORG with a view to ORG indicting the applicant and committing him for trial at ORG . That order was served on the applicant on DATE .

In a judgment of CARDINAL DATE ORG of ORG ordered further investigations to be made and appointed for that purpose the investigating judge at the GPE tribunal de grande instance who had previously been in charge of the investigation .

On DATE the applicant requested that a bailiff be called on to record officially that his detention had become unlawful as the last order extending it , dated DATE and effective from TIME on DATE for a period of DATE , had expired at TIME on DATE .

In a formal demand for information ( sommation interpellative ) addressed to the governor of ORG the bailiff asked to be sent the detention order by virtue of which the applicant was still being held in his prison . In reply he was told that the applicant was being detained under the transfer order of CARDINAL DATE and ORG judgment of DATE .

The applicant stated that he had lodged a complaint with the NORP public prosecutor alleging arbitrary detention but had received no reply .

On DATE the applicant made an application to ORG for his immediate release on the ground that he was being detained arbitrarily as the judge ’s initial warrant of commitment had ceased to have any effect on DATE .

In a judgment of DATE ORG dismissed that application for the following reason :

“ It is not disputed that the judgment of DATE was delivered within the time laid down by the last paragraph of LAW . Consequently , since ORG did not rule on the facts being investigated , the warrant of commitment issued by the investigating judge continued to have effect .

In the same judgment ORG ordered that the applicant should be kept in custody to avoid all risk of pressure being brought to bear on witnesses or collusion and because he could not provide sufficient sureties that he would appear for trial .

NORP The applicant appealed on points of law , relying on grounds of appeal based , firstly , on an infringement of LAW and , secondly , on a breach of ORG and CARDINAL of LAW and LAW .

In a judgment of CARDINAL DATE ORG dismissed the appeal on the following grounds :

“ It appears from the impugned judgment and the documents on the file that on DATE a warrant of commitment was issued in respect of [ the applicant ] , who was under investigation for offences including armed robbery . On expiry of its validity DATE , the investigating judge extended the detention CARDINAL times for DATE , the final extension taking effect on DATE .

On DATE , following the investigating judge ’s transfer order of CARDINAL DATE , ORG ordered further investigations .

[ The applicant ] made an application to ORG for his release , alleging that the detention order had ceased to be valid on DATE and that he had been unlawfully detained since that date ; that application was refused in the judgment now appealed against .

In so ruling , the investigating court did not lay itself open to the objections raised . Since the judges ordered further investigations within the time allowed by LAW , third paragraph , of the Code of Criminal Procedure , the initial warrant of commitment remained effective , in accordance with LAW , second paragraph , of the LAW , after the transfer order was issued and so remains until a decision on indictment is taken … ”

On DATE , after completion of the further investigations , ORG directed that the applicant be committed for trial at ORG charged with armed robbery , false imprisonment and other connected lesser offences . The judgment committing the applicant for trial at ORG also contained an order for him to be remanded in custody . An appeal on points of law by the applicant against that judgment was dismissed by ORG on DATE .

On DATE the applicant was tried at ORG , which sentenced him to CARDINAL years’ imprisonment . In a judgment delivered on DATE on the civil claims the applicant was ordered to pay the civil party FRF CARDINAL in damages .

In a judgment of CARDINAL March CARDINAL ORG dismissed appeals on points of law by the applicant against ORG judgments .

The relevant provisions of LAW , as worded before the passing of LAW of DATE reinforcing the presumption of innocence and the rights of victims , provide as follows :

“ The investigating judge may issue … a … warrant of commitment ...

The warrant of commitment is the order given by an investigating judge to a prison governor to admit the person and take him into custody … ”

“ The investigating judge may issue a warrant of commitment only after examining the person concerned and if the penalty is imprisonment for an intermediate offence [ peine d’emprisonnement correctionnelle ] or for a more serious offence .

In cases involving serious offences [ matière criminelle ] or intermediate offences [ matière correctionnelle ] , warrants of commitment may only be issued pursuant to the order provided for in Article CARDINAL … ”

“ Whatever the classification of the offence , any decision to detain pending trial must be embodied in an order setting out the legal and factual reasons for the decision with reference solely to the provisions of LAW .

The person concerned shall be informed orally of the order and be given a complete copy of it …

However , the investigating judge may not order the immediate detention of the accused if he or his lawyer requests time for the preparation of his defence .

In that case the investigating judge may , in an order that is reasoned with reference to the provisions of the preceding paragraph and against which no appeal shall lie , direct that the person be taken into custody for a fixed period , which may in no case exceed DATE .

Within that period he shall again have the person brought before him … If he does not order detention of the person pending trial , the latter shall automatically be released … ”

“ In cases involving serious offences [ matière criminelle ] an accused can not be held in detention for DATE . However , subject to the provisions of LAW , the investigating judge may , at the end of that period , decide to prolong detention for a period not exceeding DATE by means of a decision made in accordance with the provisions of the first and fourth paragraphs of Article CARDINAL , his lawyer having been summoned in accordance with the provisions of the second paragraph of LAW . That decision shall be renewable by means of the same procedure .

The provisions of this Article shall apply until the disposal order is made . ”

“ An application for release may … be made by any accused for any reason and at any stage in the proceedings .

Where application is made to a court of trial or appeal , it shall be for the latter to grant conditional release ; before committal for trial at ORG , and in between ORG sessions , that power belongs to ORG … ”

“ If the investigating judge considers that the facts amount to an offence classified in law as a serious offence [ crime ] , he shall order that the case file and a list of the exhibits be sent immediately by the public prosecutor to ORG at ORG with a view to proceeding as set out in the chapter on ORG .

Warrants for the arrest or commitment of an accused shall remain in force until ORG has given its ruling . ”

“ ORG may in all cases , at the request of ORG , of CARDINAL of the parties or even of its own motion , order any additional investigative measure which it considers useful .

It may also in all cases order the release of the accused of its own motion after hearing the prosecutor . ”

“ If the offences with which the accused are charged are classified in law as a serious offence [ crime ] , ORG shall commit the accused for trial at ORG .

It may also refer connected offences to that court .

ORG shall give its ruling within DATE of the date of the transfer order , failing which the accused shall automatically be released . ”

“ Persons ordered to be detained pending trial or sentenced to imprisonment shall be admitted to a prison .

A memorandum of imprisonment shall be drawn up for any person who is taken to a prison or reports to a prison of his own accord . ”

“ Members of the prison service shall not , on pain of prosecution and punishment for arbitrary detention , admit or detain any person except in pursuance of a judgment imposing a prison sentence , an arrest and detention order made by ORG [ ordonnnance de prise de corps ] , a warrant of commitment or arrest [ mandat de dépôt ou d’arrêt ] , a warrant for the suspect to be brought before the investigating judge [ mandat d’amener ] wherever such a warrant is to be followed immediately by a period of interim detention , or an arrest order drawn up in accordance with the law , or without issuing the memorandum of imprisonment required by LAW . ”

The relevant case - law on some of the aforementioned ORG is as follows :

“ Since the second paragraph of LAW entitles ORG to order the release of the accused of its own motion regardless of the circumstances in which the matter was referred to it , the accused must be released if he is being held by virtue of a non - existent order . Such is the case when an order extending a period of pre - trial detention , although not appealed against , was issued out of time . ”

( PERSON . PERSON . , DATE , ORG , p. CARDINAL , note by PERSON ; ORG . II . DATE , note by PERSON ; PERSON . crim . no . CARDINAL [ ; and ] PERSON . PERSON . , CARDINAL DATE : Bull . crim . no . CARDINAL )

“ By DATE paragraph , ORG must give its ruling within DATE of the date of the transfer order , failing which the accused must automatically be released . The requirements of that provision are satisfied by a judgment in which further investigations are ordered within that time - limit . ”

( PERSON . PERSON . , DATE : Bull . crim . no . CARDINAL )

“ In that case , it is not necessary to give any decision on pre - trial detention . ”

( PERSON . PERSON . , DATE : ORG . crim . no . CARDINAL ; PERSON . PERSON . , DATE : ORG . crim . no . CARDINAL )

“ By DATE , the initial detention order automatically remains in force from the point at which the order to transfer the case is made until ORG gives its decision … ”

“ Whenever ORG has ruled within the time laid down by LAW , third paragraph , even if only for the purpose of ordering further investigations , the initial warrant of commitment remains in force until the accused is indicted as prescribed by LAW , second paragraph . ”