Violation of Art. 8;Not necessary to examine Art. 13;Just satisfaction reserved

ORG Mr. PERSON was born in DATE and is resident in GPE , GPE . In DATE , he was an antique dealer . It appears that he has since ceased business as such .

ORG On DATE , Mr. PERSON was charged with a number of offences relating to dishonest handling of stolen goods . His trial , which took place in DATE and DATE , resulted in his being acquitted on certain counts and the jury disagreeing on the rest . He was retried on the remaining charges DATE . Following a further failure by the jury to agree , he was once more formally arraigned ; the prosecution offered no evidence and he was acquitted .

ORG During the first trial , it emerged that details of a telephone conversation to which Mr. PERSON had been a party prior to CARDINAL DATE were contained in the note - book of the police officer in charge of the investigations . Counsel for the prosecution then accepted that this conversation had been intercepted on the authority of a warrant issued by the Secretary of ORG for ORG .

ORG In DATE , the applicant instituted civil proceedings in ORG of ORG against ORG Commissioner , seeking , inter alia , declarations to the effect that interception , monitoring and recording of conversations on his telephone lines without his consent was unlawful , even if done pursuant to a warrant of the Secretary of ORG . ORG intervened in the proceedings on behalf of the Secretary of ORG but without being made a party . On DATE , the Vice - Chancellor , Sir PERSON , dismissed the applicant ’s claim ( ORG v. Commissioner of Police of the LOC ( No . CARDINAL ) , [ DATE ] CARDINAL All England Law Reports CARDINAL ; also reported at [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) . An account of this judgment is set out below ( at paragraphs CARDINAL - CARDINAL ) .

ORG The applicant further believed that both his correspondence and his telephone calls had been intercepted for DATE . He based his belief on delay to and signs of interference with his correspondence . In particular , he produced to the Commission bundles of envelopes which had been delivered to him either sealed with an adhesive tape of an identical kind or in an unsealed state . As to his telephone communications , he stated that he had heard unusual noises on his telephone and alleged that the police had at times been in possession of information which they could only have obtained by telephone tapping . He thought that such measures had continued since his acquittal on the charges against him .

It was admitted by the Government that the single conversation about which evidence emerged at the applicant ’s trial had been intercepted on behalf of the police pursuant to a warrant issued under the hand of the Secretary of ORG for the prevention and detection of crime . According to the ORG , this interception was carried out in full conformity with the law and the relevant procedures . No disclosure was made either at the trial of the applicant or during the course of the applicant ’s proceedings against the Commissioner of Police as to whether the applicant ’s own telephone number had been tapped or as to whether other and , if so , what other , telephone conversations to which the applicant was a party had been intercepted . The primary reasons given for withholding this information were that disclosure would or might frustrate the purpose of telephone interceptions and might also serve to identify other sources of police information , particularly police informants , and thereby place in jeopardy the source in question . For similar reasons , the ORG declined to disclose before the ORG or the ORG to what extent , if at all , the applicant ’s telephone calls and correspondence had been intercepted on behalf of the police authorities . It was however denied that the resealing with adhesive tape or the delivery unsealed of the envelopes produced to the ORG was attributable directly or indirectly to any interception . The Government conceded that , as the applicant was at the material time suspected by the police of being concerned in the receiving of stolen property and in particular of stolen antiques , he was one of a class of persons against whom measures of interception were liable to be employed .

ORG In addition , Mr. PERSON believed that his telephone had been " metered " on behalf of the police by a device which automatically records all numbers dialled . As evidence for this belief , he asserted that when he was charged in DATE the premises of CARDINAL people whom he had recently telephoned were searched by the police . The Government affirmed that the police had neither caused the applicant ’s telephone calls to be metered nor undertaken the alleged or any search operations on the basis of any list of numbers obtained from metering .

ORG In DATE , the applicant requested ORG and the complaints department of the police to remove suspected listening devices from his telephone . ORG and the police both replied that they had no authority in the matter .

ORG The following account is confined to the law and practice in GPE and GPE relating to the interception of communications on behalf of the police for the purposes of the prevention and detection of crime . The expression " interception " is used to mean the obtaining of information about the contents of a communication by post or telephone without the consent of the parties involved .

ORG It has for long been the practice for the interception of postal and telephone communications in GPE and GPE to be carried out on the authority of a warrant issued by a Secretary of ORG , nowadays normally the Secretary of ORG for ORG ( the Home Secretary ) . There is no overall statutory code governing the matter , although various statutory provisions are applicable thereto . The effect in domestic law of these provisions is the subject of some dispute in the current proceedings . Accordingly , the present summary of the facts is limited to what is undisputed , the submissions in relation to the contested aspects of these provisions being dealt with in the part of the judgment " as to the law " .

ORG Three official reports available to the public have described and examined the working of the system for the interception of communications .

Firstly , a ORG under the chairmanship of Lord PERSON was appointed in DATE " to consider and report upon the exercise by the Secretary of ORG of the executive power to intercept communications and , in particular , under what authority , to what extent and for what purposes this power has been exercised and to what use information so obtained has been put ; and to recommend whether , how and subject to what safeguards , this power should be exercised ... " . The ORG ’s report ( hereinafter referred to as " the PERSON report " ) was published in DATE ( as ORG ) . ORG announced that they accepted the report and its recommendations , and were taking immediate steps to implement those recommendations calling for a change in procedure . Subsequent Governments , in the person of the Prime Minister or ORG Secretary , publicly reaffirmed before ORG that the arrangements relating to the interception of communications were strictly in accordance with the procedures described and recommended in the PERSON report .

Secondly , a ORG entitled " The Interception of Communications in Great Britain " was presented to ORG by the then Home Secretary in DATE ( Command Paper CARDINAL - hereinafter referred to as " the White Paper " ) . The purpose of the White Paper was to bring up to date the account given in the PERSON report .

Finally , in DATE a report by Lord PERSON , a Lord of Appeal in Ordinary who had been appointed to monitor the relevant procedures on a continuing basis ( see paragraphs DATE and DATE below ) , was published outlining the results of the monitoring he had carried out to date .

ORG The legal basis of the practice of intercepting telephone communications was also examined by the Vice - Chancellor in his judgment in the action which the applicant brought against ORG Commissioner ( see paragraphs CARDINAL - CARDINAL below ) .

Certain changes have occurred in the organisation of the postal and telephone services since DATE , when ORG made its report . ORG , which ran both services , was then a ORG under the direct control of a Minister ( ORG ) . By virtue of ORG DATE , it became a public corporation with a certain independence of the ORG , though subject to various ministerial powers of supervision and control exercised at the material time by the ORG Secretary . ORG DATE was repealed in part and amended by LAW DATE . That Act divided ORG into CARDINAL corporations : ORG , responsible for mail , and ORG , responsible for telephones . The DATE Act made no change of substance in relation to the law governing interceptions . For the sake of convenience , references in the present judgment are to the position as it was before the DATE Act came into force .

ORG The existence of a power vested in the Secretary of ORG to authorise by warrant the interception of correspondence , in the sense of detaining and opening correspondence transmitted by post , has been acknowledged from early times and its exercise has been publicly known ( see the PERSON report , Part I , especially paras . CARDINAL , DATE and DATE ) . The precise origin in law of this executive authority is obscure ( ibid . , para . CARDINAL ) . Nevertheless , although none of the Post Office statutes ( of DATE , DATE , DATE or DATE ) contained clauses expressly conferring authority to intercept communications , all recognised the power as an independently existing power which it was lawful to exercise ( ibid . , paras . CARDINAL and CARDINAL ) .

ORG At the time of the PERSON report , the most recent statutory provision recognising the right of interception of a postal communication was section CARDINAL sub - section CARDINAL of the Post Office Act DATE , which provides :

" If any officer of ORG , contrary to his duty , opens ... any postal packet in course of transmission by post , or wilfully detains or delays ... any such postal packet , he shall be guilty of a misdemeanour ... .

Provided that nothing in this section shall extend to ... the opening , detaining or delaying of a postal packet ... in obedience to an express warrant in writing under the hand of a Secretary of ORG . "

" Postal packet " is defined in LAW sub - section QUANTITY as meaning :

" a letter , postcard , reply postcard , newspaper , printed packet , sample packet or parcel and every packet or article transmissible by post , and includes a telegram " .

Section CARDINAL , which is still in force , reproduced a clause that had been on the statute book without material amendment since DATE .

ORG So far as telecommunications are further concerned , it is an offence under LAW of LAW DATE if an official of ORG " improperly divulges to any person the purport of any message " . LAW of ORG ) Act DATE creates a similar offence in relation to telegrams . In addition , section CARDINAL of the Telegraph Act CARDINAL makes it a criminal offence if any ORG official " shall , contrary to his duty , disclose or in any way make known or intercept the contents or any part of the contents of any telegraphic message or any message entrusted to ORG ] for the purpose of transmission " .

These provisions are still in force .

ORG It was held in a case decided in DATE ( Attorney General v. ORG , ( DATE ) CARDINAL Queen ’s Bench Division CARDINAL ) that a telephone conversation is a " telegraphic communication " for the purposes of FAC . It has not been disputed in the present proceedings that the offences under the Telegraph Acts apply to telephone conversations .

ORG The power to intercept telephone messages has been exercised in GPE and GPE from time to time since the introduction of the telephone . Until DATE , ORG , which was at that time a ORG , acted upon the view that the power which the ORG exercised in intercepting telephone messages was a power possessed by any operator of telephones and was not contrary to law . Consequently , no warrants by the Secretary of ORG were issued and arrangements for the interception of telephone conversations were made directly between the police authorities and ORG . In DATE , the position was reviewed by the Home Secretary and ORG ( the Minister then responsible for the administration of ORG ) and it was decided , as a matter of policy , that it was undesirable that records of telephone conversations should be made by ORG servants and disclosed to the police without the authority of the Secretary of ORG . The view was taken that the power which had for long been exercised to intercept postal communications on the authority of a warrant of the Secretary of ORG was , by its nature , wide enough to include the interception of telephone communications . Since DATE it had accordingly been the practice of ORG to intercept telephone conversations only on the express warrant of the Secretary of ORG ( see the PERSON report , paras . CARDINAL - CARDINAL ) .

ORG considered that the power to intercept telephone communications rested upon the power plainly recognised by the Post Office statutes as existing before the enactment of the statutes ( PERSON report , para . CARDINAL ) . It concluded ( ibid . , para . CARDINAL ) :

" We are therefore of the opinion that the state of the law might fairly be expressed in this way .

( a ) The power to intercept letters has been exercised from the earliest times , and has been recognised in successive Acts of ORG .

( b ) This power extends to telegrams .

( c ) It is difficult to resist the view that if there is a lawful power to intercept communications in the form of letters and telegrams , then it is wide enough to cover telephone communications as well . "

ORG Under LAW DATE , ORG " ceased to be a ORG and was established as a public corporation of that name with the powers , duties and functions set out in the LAW . In consequence of the change of status of ORG and of the fact that ORG was no longer under the direct control of a Minister of the ORG , it became necessary to make express statutory provision in relation to the interception of communications on the authority of a warrant of the Secretary of ORG . By section CARDINAL of the Act it was therefore provided as follows :

" A requirement to do what is necessary to inform designated persons holding office under the ORG concerning matters and things transmitted or in course of transmission by means of postal or telecommunication services provided by ORG may be laid on ORG for the like purposes and in the like manner as , at the passing of this LAW , a requirement may be laid on the Postmaster General to do what is necessary to inform such persons concerning matters and things transmitted or in course of transmission by means of such services provided by him . "

ORG The DATE Act also introduced , for the first time , an express statutory defence to the offences under the Telegraph Acts mentioned above ( at paragraph CARDINAL ) , similar to that which exists under section CARDINAL para . CARDINAL of LAW DATE . This was effected by paragraph CARDINAL sub - paragraph CARDINAL of Schedule CARDINAL to the Act , which reads :

" In any proceedings against a person in respect of an offence under LAW of LAW DATE or LAW of ORG ) Act DATE consisting in the improper divulging of the purport of a message or communication or an offence under section CARDINAL of LAW DATE it shall be a defence for him to prove that the act constituting the offence was done in obedience to a warrant under the hand of a Secretary of ORG . "

ORG In the civil action which he brought against ORG Commissioner , Mr. PERSON sought various relief including declarations to the following effect :

- that any " tapping " ( that is , interception , monitoring or recording ) of conversations on his telephone lines without his consent , or disclosing the contents thereof , was unlawful even if done pursuant to a warrant of the Home Secretary ;

- that he had rights of property , privacy and confidentiality in respect of conversations on his telephone lines and that the above - stated tapping and disclosure were in breach of those rights ;

- that the tapping of his telephone lines violated LAW article CARDINAL) of the LAW .

In his judgment , delivered on DATE , the Vice - Chancellor noted that he had no jurisdiction to make the declaration claimed in respect of LAW article CARDINAL) of the Convention . He made a detailed examination of the domestic law relating to telephone tapping , held in substance that the practice of tapping on behalf of the police as recounted in the PERSON report was legal and accordingly dismissed the action .

ORG The Vice - Chancellor described the central issue before him as being in simple form : is telephone tapping in aid of the police in their functions relating to crime illegal ? He further delimited the question as follows :

" ... the only form of telephone tapping that has been debated is tapping which consists of the making of recordings by ORG officials in some part of the existing telephone system , and the making of those recordings available to police officers for the purposes of transcription and use . I am not concerned with any form of tapping that involved electronic devices which make wireless transmissions , nor with any process whereby anyone trespasses onto the premises of the subscriber or anyone else to affix tapping devices or the like . All that I am concerned with is the legality of tapping effected by means of recording telephone conversations from wires which , though connected to the premises of the subscriber , are not on them . " ( [ DATE ] CARDINAL All England Law Reports , p. CARDINAL )

ORG The Vice - Chancellor held that there was no right of property ( as distinct from copyright ) in words transmitted along telephone lines ( ibid . , p. CARDINAL ) .

As to the applicant ’s remaining contentions based on privacy and confidentiality , he observed firstly that no assistance could be derived from cases dealing with other kinds of warrant . Unlike a search of LOC , the process of telephone tapping on ORG premises did not involve any act of trespass and so was not prima facie illegal ( ibid . , p. CARDINAL ) . Secondly , referring to the warrant of the Home Secretary , the Vice - Chancellor remarked that such warrant did not " purport to be issued under the authority of any statute or of the common law " . The decision to introduce such warrants in DATE seemed " plainly to have been an administrative decision not dictated or required by statute " ( ibid . ) . He referred , however , to section CARDINAL of the Post Office Act DATE and Schedule CARDINAL to the Act , on which ORG had based certain contentions summarised as follows :

" Although the previous arrangements had been merely administrative , they had been set out in the PERSON report DATE , and the section plainly referred to these arrangements ; ... A warrant was not needed to make the tapping lawful : it was lawful without any warrant . But where the tapping was done under warrant ... [ section DATE ] afforded statutory recognition of the lawfulness of the tapping . " ( ibid . , p. CARDINAL )

" In their essentials " , stated the Vice - Chancellor , " these contentions seem to me to be sound . " He accepted that , by LAW ,

" ORG has provided a clear recognition of the warrant of the ORG Secretary as having an effective function in law , both as providing a defence to certain criminal charges , and also as amounting to an effective requirement for ORG to do certain acts " ( ibid . , pp . CARDINAL - CARDINAL ) .

The Vice - Chancellor further concluded that there was in LANGUAGE law neither a general right of privacy nor , as the applicant had contended , a particular right of privacy to hold a telephone conversation in the privacy of one ’s home without molestation ( ibid . , pp . CARDINAL - CARDINAL ) . Moreover , no duty of confidentiality existed between ORG and the telephone subscriber ; nor was there any other obligation of confidence on a person who overheard a telephone conversation , whether by means of tapping or otherwise ( ibid . , pp . CARDINAL - CARDINAL ) .

ORG Turning to the arguments based on the Convention , the Vice - Chancellor noted firstly that the LAW was not part of the law of GPE and , as such , did not confer on the applicant direct rights that could be enforced in the NORP courts ( ibid . , p. CARDINAL ) .

He then considered the applicant ’s argument that the LAW , as interpreted by ORG in the case of PERSON and Others ( judgment of DATE , Series A no . CARDINAL ) , could be used as a guide to assist in the determination of LANGUAGE law on a point that was uncertain . He observed that the issues before him did not involve construing legislation enacted with the purpose of giving effect to obligations imposed by the LAW . Where ORG had abstained from legislating on a point that was plainly suitable for legislation , it was difficult for the court to lay down new rules that would carry out the ORG ’s treaty obligations , or to discover for the first time that such rules had always existed . He compared the system of safeguards considered in the PERSON case with the NORP system , as described in the PERSON report , and concluded :

" ... Not a single one of these safeguards is to be found as a matter of established law in GPE , and only a few corresponding provisions exist as a matter of administrative procedure .

It does not , of course , follow that a system with fewer or different safeguards will fail to satisfy LAW article CARDINAL) in the eyes of ORG . At the same time , it is impossible to read the judgment in the PERSON case without it becoming abundantly clear that a system which has no legal safeguards whatever has small chance of satisfying the requirements of that ORG , whatever administrative provisions there may be . ... Even if the system [ in operation in GPE ] were to be considered adequate in its conditions , it is laid down merely as a matter of administrative procedure , so that it is unenforceable in law , and as a matter of law could at any time be altered without warning or subsequent notification . Certainly in law any ‘ adequate and effective safeguards against ORG are wanting . In this respect LANGUAGE law compares most unfavourably with NORP law : this is not a subject on which it is possible to feel any pride in LANGUAGE law .

I therefore find it impossible to see how LANGUAGE law could be said to satisfy the requirements of the LAW , as interpreted in the PERSON case , unless that law not only prohibited all telephone tapping save in suitably limited classes of case , but also laid down detailed restrictions on the exercise of the power in those limited classes . "

This conclusion did not , however , enable the Vice - Chancellor to decide the case in the way the applicant sought :

" It may perhaps be that the common law is sufficiently fertile to achieve what is required by the first limb of [ the above - stated proviso ] : possible ways of expressing such a rule may be seen in what I have already said . But I see the greatest difficulty in the common law framing the safeguards required by the second limb . Various institutions or offices would have to be brought into being to exercise various defined functions . The more complex and indefinite the subject - matter the greater the difficulty in the court doing what it is really appropriate , and only appropriate , for the legislature to do . Furthermore , I find it hard to see what there is in the present case to require the LANGUAGE courts to struggle with such a problem . Give full rein to the LAW , and it is clear that when the object of the surveillance is the detection of crime , the question is not whether there ought to be a general prohibition of all surveillance , but in what circumstances , and subject to what conditions and restrictions , it ought to be permitted . It is those circumstances , conditions and restrictions which are at the centre of this case ; and yet it is they which are the least suitable for determination by judicial decision .

... Any regulation of so complex a matter as telephone tapping is essentially a matter for ORG , not the courts ; and neither the ORG nor the PERSON case can , I think , play any proper part in deciding the issue before me . " ( ibid . , pp . CARDINAL - CARDINAL )

He added that " this case seems to me to make it plain that telephone tapping is a subject which cries out for legislation " , and continued :

" However much the protection of the public against crime demands that in proper cases the police should have the assistance of telephone tapping , I would have thought that in any civilised system of law the claims of liberty and justice would require that telephone users should have effective and independent safeguards against possible abuses . The fact that a telephone user is suspected of crime increases rather than diminishes this requirement : suspicions , however reasonably held , may sometimes prove to be wholly unfounded . If there were effective and independent safeguards , these would not only exclude some cases of excessive zeal but also , by their mere existence , provide some degree of reassurance for those who are resentful of the police or believe themselves to be persecuted . " ( ibid . , p. CARDINAL )

ORG As a final point of substance , the Vice - Chancellor dealt , in the following terms , with the applicant ’s contention that as no power to tap telephones had been given by either statute or common law , the tapping was necessarily unlawful :

" I have already held that , if such tapping can be carried out without committing any breach of the law , it requires no authorisation by statute or common law ; it can lawfully be done simply because there is nothing to make it unlawful . Now that I have held that such tapping can indeed be carried out without committing any breach of the law , the contention necessarily fails . I may also say that the statutory recognition given to the Home Secretary ’s warrant seems to me to point clearly to the same conclusion . " ( ibid . , p. CARDINAL )

ORG The Vice - Chancellor therefore held that the applicant ’s claim failed in its entirety . He made the following concluding remarks as to the ambit of his decision :

" Though of necessity I have discussed much , my actual decision is closely limited . It is confined to the tapping of the telephone lines of a particular person which is effected by ORG LOC in pursuance of a warrant of the Home Secretary in a case in which the police have just cause or excuse for requesting the tapping , in that it will assist them in performing their functions in relation to crime , whether in prevention , detection , discovering the criminals or otherwise , and in which the material obtained is used only by the police , and only for those purposes . In particular , I decide nothing on tapping effected for other purposes , or by other persons , or by other means ; nothing on tapping when the information is supplied to persons other than the police ; and nothing on tapping when the police use the material for purposes other than those I have mentioned . The principles involved in my decision may or may not be of some assistance in such other cases , whether by analogy or otherwise : but my actual decision is limited in the way that I have just stated . " ( ibid . , p. CARDINAL )

ORG Following the Vice - Chancellor ’s judgment , the necessity for legislation concerning the interception of communications was the subject of review by the Government , and of NORP discussion . On DATE , on the publication of ORG , the ORG Secretary announced in ORG that after carefully considering the suggestions proffered by the Vice - Chancellor in his judgment , the ORG had decided not to introduce legislation . He explained the reasons for this decision in the following terms :

" The interception of communications is , by definition , a practice that depends for its effectiveness and value upon being carried out in secret , and can not therefore be subject to the normal processes of parliamentary control . Its acceptability in a NORP society depends on its being subject to ministerial control , and on the readiness of the public and their representatives in ORG to repose their trust in the Ministers concerned to exercise that control responsibly and with a right sense of balance between the value of interception as a means of protecting order and security and the threat which it may present to the liberty of the subject .

Within the necessary limits of secrecy , I and my right hon . Friends who are concerned are responsible to ORG for our stewardship in this sphere . There would be no more sense in making such secret matters justiciable than there would be in my being obliged to reveal them in the ORG . If the power to intercept were to be regulated by statute , then the courts would have power to inquire into the matter and to do so , if not publicly , then at least in the presence of the complainant . This must surely limit the use of interception as a tool of investigation . The Government have come to the clear conclusion that the procedures , conditions and safeguards described in the [ White ] Paper ensure strict control of interception by Ministers , are a good and sufficient protection for the liberty of the subject , and would not be made significantly more effective for that purpose by being embodied in legislation . The Government have accordingly decided not to introduce legislation on these matters " ( ORG , ORG , DATE , cols . CARDINAL - CARDINAL ) .

He gave an assurance that " ORG will be informed of any changes that are made in the arrangements " ( ibid . , col . CARDINAL ) .

ORG In the course of the NORP proceedings leading to the enactment of LAW DATE , attempts were made to include in the PERSON provisions which would have made it an offence to intercept mail or matters sent by public telecommunication systems except pursuant to a warrant issued under conditions which corresponded substantially to those described in the White Paper . The Government successfully opposed these moves , primarily on the grounds that secrecy , which was essential if interception was to be effective , could not be maintained if the arrangements for interception were laid down by legislation and thus became justiciable in the courts . The present arrangements and safeguards were adequate and the proposed new provisions were , in the ORG ’s view , unworkable and unnecessary ( see , for example , the statement of ORG in ORG on DATE , ORG , cols . CARDINAL - CARDINAL ) . The DATE Act eventually contained a re - enactment of section CARDINAL of the Post Office Act DATE applicable to ORG , para . CARDINAL , of the DATE Act ) . LAW of LAW itself continues to apply to ORG .

ORG In its report presented to ORG in DATE ( ORG ) , ORG , which had been appointed in DATE , also considered the possible need for legislation in this field . In the chapter entitled " Investigative powers and the rights of the citizen " , ORG made the following recommendation in regard to what it termed " surreptitious surveillance " ( paras . CARDINAL - CARDINAL.CARDINAL ) :

" ... [ A]lthough we have no evidence that the existing controls are inadequate to prevent abuse , we think that there are strong arguments for introducing a system of statutory control on similar lines to that which we have recommended for search warrants . As with all features of police investigative procedures , the value of prescribing them in statutory form is that it brings clarity and precision to the rules ; they are open to public scrutiny and to the potential of Parliamentary review . So far as surveillance devices in general are concerned this is not at present so .

We therefore recommend that the use of surveillance devices by the police ( including the interception of letters and telephone communications ) should be regulated by statute . "

These recommendations were not adopted by the Government .

ORG DATE , ORG , a permanent body set up by statute in DATE for the purpose of promoting reform of the law , produced a report on breach of confidence ( presented to ORG in DATE Paper CARDINAL ) . This report examined , inter alia , the implications for the civil law of confidence of the acquisition of information by surveillance devices , and made various proposals for reform of the law ( paras . PERCENT ) . ORG , however , felt that the question whether " the methods which the police ... may use to obtain information should be defined by statute " was a matter outside the scope of its report ( paras . CARDINAL and CARDINAL in fine ) . No action has been taken by the Government on this report .

ORG Details of the current practices followed in relation to interceptions are set out in the Government ’s ORG of DATE . The practices there summarised are essentially the same as those described and recommended in the PERSON report , and referred to in NORP statements by successive Prime Ministers and Home Secretaries in DATE , DATE , DATE and DATE .

ORG The police , ORG and Excise and ORG may request authority for the interception of communications for the purposes of " detection of serious crime and the safeguarding of the security of the ORG " ( paragraph CARDINAL of the White Paper ) . Interception may take place only on the authority of the Secretary of ORG given by warrant under his own hand . In GPE and GPE , the power to grant such warrants is exercised by the ORG Secretary or occasionally , if he is ill or absent , by another Secretary of ORG on his behalf ( ibid . ) . In the case of warrants applied for by the police to assist them in the detection of crime , CARDINAL conditions must be satisfied before a warrant will be issued :

( a ) the offence must be " really serious " ;

( b ) normal methods of investigation must have been tried and failed or must , from the nature of things , be unlikely to succeed ;

( c ) there must be good reason to think that an interception would be likely to lead to an arrest and a conviction .

ORG As is indicated in the PERSON report ( paras . CARDINAL - CARDINAL ) , the concept of " serious crime " has varied from time to time . Changing circumstances have made some acts serious offences which were not previously so regarded ; equally , some offences formerly regarded as serious enough to justify warrants for the interception of communications have ceased to be so regarded . Thus , the interception of letters believed to contain obscene or indecent matter ceased in DATE ( PERSON report , para . CARDINAL ) ; no warrants for the purpose of preventing the transmission of illegal lottery material have been issued since DATE ( ibid . , para . CARDINAL ) . " Serious crime " is defined in the White Paper , and subject to the addition of the concluding words has been consistently defined since DATE ( PERSON report , para . CARDINAL ) , as consisting of " offences for which a man with no previous record could reasonably be expected to be sentenced to CARDINAL GPE imprisonment , or offences of lesser gravity in which either a large number of people is involved or there is good reason to apprehend the use of violence " ( ORG , para . CARDINAL ) . In DATE , the ORG Secretary announced to ORG that , on a recommendation made by Lord PERSON in his second report ( see paragraph DATE below ) , the concept of a serious offence was to be extended to cover offences which would not necessarily attract a penalty of CARDINAL PERSON imprisonment on first conviction , but in which the financial rewards of success were very large ( ORG , ORG , DATE , col . CARDINAL ) .

Handling ( including receiving ) stolen goods , knowing or believing them to be stolen , is an offence under LAW of LAW DATE , carrying a maximum penalty of DATE imprisonment . According to the Government , the receiving of stolen property is regarded as a very serious offence since the receiver lies at the root of much organised crime and encourages large - scale thefts ( see the PERSON report , para . CARDINAL ) . The detection of receivers of stolen property was at the time of the PERSON report ( ibid . ) , and remains , CARDINAL of the important uses to which interception of communications is put by the police .

ORG Applications for warrants must be made in writing and must contain a statement of the purpose for which interception is requested and of the facts and circumstances which support the request . Every application is submitted to the Permanent Under - Secretary of ORG - the senior civil servant - at ORG ( or , in his absence , a nominated deputy ) , who , if he is satisfied that the application meets the required criteria , submits it to the Secretary of ORG for approval and signature of a warrant . In a case of exceptional urgency , if the Secretary of ORG is not immediately available to sign a warrant , he may be asked to give authority orally , by telephone ; a warrant is signed and issued as soon as possible thereafter ( ORG , para . CARDINAL ) .

In their submissions to the ORG and the ORG , the ORG supplemented as follows the information given in the White Paper . Except in cases of exceptional urgency , an application will only be considered in ORG if it is put forward by a senior officer of ORG , in practice the Assistant Commissioner ( Crime ) , and also , in the case of another police force , by the chief officer of police concerned . Close personal consideration is given by the Secretary of ORG to every request for a warrant submitted to him . In the debate on the NORP Telecommunications Bill in DATE , the then Home Secretary confirmed before ORG that he did not and would not sign any warrant for interception unless he were personally satisfied that the relevant criteria were met ( ORG , DATE , col . CARDINAL ) .

ORG Every warrant sets out the name and address of the recipient of mail in question or the telephone number to be monitored , together with the name and address of the subscriber . Any changes require the authority of the Secretary of ORG , who may delegate power to give such authority to the Permanent Under - Secretary . If both the mail and the telephone line of a person are to be intercepted , CARDINAL separate warrants are required ( ORG , para . CARDINAL ) .

ORG Every warrant is time - limited , specifying a date on which it expires if not renewed . Warrants are in the first place issued with a time - limit set at a defined date not exceeding DATE from the date of issue . Warrants may be renewed only on the personal authority of the Secretary of ORG and may be renewed for not more than one month at a time . In each case where renewal of a warrant is sought , the police are required first to satisfy the Permanent Under - Secretary of ORG at ORG that the reasons for which the warrant was first issued are still valid and that the case for renewal is justified : a submission to the Secretary of ORG for authority to renew the warrant is only made if the Permanent Under - Secretary is so satisfied ( ORG , para . CARDINAL ) .

Warrants are reviewed DATE by the Secretary of ORG . When an interception is considered to be no longer necessary , it is immediately discontinued and the warrant is cancelled on the authority of the Permanent Under - Secretary of ORG at ORG . In addition to the DATE review of each warrant by the Secretary of ORG , ORG carry out their own review DATE of all warrants arising from police applications : where an interception is deemed to be no longer necessary , instructions are issued to ORG to discontinue the interception forthwith and ORG is informed so that the warrant can be cancelled ( PERSON report , paras . CARDINAL - CARDINAL ; ORG , paras . CARDINAL - CARDINAL ) .

ORG In accordance with the recommendations of the PERSON report ( para . CARDINAL ) , records are kept in ORG , showing in respect of each application for a warrant :

( a ) the ground on which the warrant is applied for ;

( b ) a copy of the warrant issued or a note of rejection of the application ;

( c ) the dates of any renewals of the warrant ;

( d ) a note of any other decisions concerning the warrant ;

( e ) the date of cancellation of the warrant ( ORG , para . CARDINAL ) .

ORG On the issue of a warrant , the interception is effected by ORG . Telephone interceptions are carried out by a small staff of ORG employees who record the conversation but do not themselves listen to it except from time to time to ensure that the apparatus is working correctly . In the case of postal communications , ORG makes a copy of the correspondence . As regards the interception of communications for the purpose of the detection of crime , in practice the " designated person holding office under the ORG " to whom ORG is required by sub - section CARDINAL of ORG DATE to transmit the intercepted information ( see paragraph CARDINAL above ) is invariably the Commissioner of Police of the LOC . The product of the interception - that is , the copy of the correspondence or the tape - recording - is made available to a special unit of ORG who note or transcribe only such parts of the correspondence or the telephone conversation as are relevant to the investigation . When the documentary record has been made , the tape is returned to the ORG staff , who erase the recording . The tape is subsequently re - used . The majority of recordings are erased within DATE of their being taken ( PERSON report , paras . CARDINAL - CARDINAL ; ORG , para . CARDINAL ) .

ORG A ORG to Police , issued by ORG in DATE , contained the following paragraphs in a section headed " Supply of information by ORG to police " :

" CARDINAL Head Postmasters and Telephone Managers have been given authority to assist the police as indicated in paragraph CARDINAL below without reference to ORG , in circumstances where the police are seeking information

( a ) in the interests of justice in the investigation of a serious indictable offence ; or

( b ) when they are acting in a case on the instructions of the Director of Public Prosecutions ; or

( c ) when a warrant has been issued for the arrest of the offender , or the offence is such that he can be arrested without a warrant ; or

CARDINAL Head Postmasters , or ( in matters affecting the telecommunication service ) ORG , may afford the following facilities in response to a request made by the officer locally in charge of the force at the town where the Head Postmaster is stationed

( g ) Telegrams . Telegrams may be shown to the police on the authority of the sender or addressee . Apart from ORG is prepared to give authority in particular cases of serious crime where the inspection of a telegram is a matter of urgency , and will do so at once on telephonic application , by a chief officer of police or a responsible officer acting on his behalf , to ORG , ORG . ...

CARDINAL ...

CARDINAL.CARDINAL As regards any matter not covered by CARDINAL and QUANTITY above , if the police are in urgent need of information which ORG may be able to furnish in connection with a serious criminal offence , the police officer in charge of the investigation should communicate with ORG , ORG who will be ready to make any necessary inquiries of other branches of ORG and to communicate any information which can be supplied . "

In DATE , ORG notified chief officers of police that paragraph CARDINAL ( g ) , described as containing advice and information to the police which was " in some respects misleading " , was henceforth to be regarded as deleted , with the exception of the first complete sentence . At the same time , chief officers of police were reminded that the procedures for the interception of communications were set out in the White Paper and rigorously applied in all cases .

ORG The notes or transcriptions of intercepted communications are retained in the police interception unit for a period of DATE or for as long as they may be required for the purposes of investigation . The contents of the documentary record are communicated to the officers of the appropriate police force engaged in the criminal investigation in question . When the notes or transcriptions are no longer required for the purposes of the investigation , the documentary record is destroyed ( PERSON report , para . CARDINAL ; ORG , para . CARDINAL ) . The product of intercepted communications is used exclusively for the purpose of assisting the police to pursue their investigations : the material is not tendered in evidence , although the interception may itself lead to the obtaining of information by other means which may be tendered in evidence ( PERSON report , para . CARDINAL ; ORG , para . CARDINAL ) . In accordance with the recommendation of ORG ( PERSON report , para . CARDINAL ) , information obtained by means of an interception is never disclosed to private individuals or private bodies or to courts or tribunals of any kind ( ORG , para . CARDINAL ) .

ORG An individual whose communications have been intercepted is not informed of the fact of interception or of the information thereby obtained , even when the surveillance and the related investigations have terminated .

ORG For security reasons it is the normal practice not to disclose the numbers of interceptions made ( PERSON report , paras . CARDINAL - CARDINAL ; ORG , paras . CARDINAL - CARDINAL ) . However , in order to allay public concern as to the extent of interception , both the PERSON report and the White Paper gave figures for the number of warrants granted DATE over DATE their publication . The figures in the White Paper ( Appendix III ) indicate that in GPE and GPE DATE generally something CARDINAL telephone warrants and something under CARDINAL postal warrants were granted DATE by the Home Secretary . Paragraph CARDINAL of the White Paper also gave the total number of Home Secretary warrants in force on DATE for DATE ( CARDINAL ) , DATE ( CARDINAL ) and DATE ( CARDINAL ) . The number of telephones installed at DATE was , according to the Government , CARDINAL , as compared with CARDINAL at DATE . The Government further stated that over the period from DATE to DATE there was a fourfold increase in indictable crime , from CARDINAL to CARDINAL .

ORG When the White Paper was published on DATE , the ORG Secretary announced in ORG that the ORG , whilst not proposing to introduce legislation ( see paragraph CARDINAL above ) , intended to appoint a senior member of the judiciary to conduct a continuous independent check so as to ensure that interception of communications was being carried out for the established purposes and in accordance with the established procedures . His terms of reference were stated to be :

" to review on a continuing basis the purposes , procedures , conditions and safeguards governing the interception of communications on behalf of the police , ORG and Excise and the security service as set out in [ the White Paper ] ; and to report to the Prime Minister " ( ORG , DATE , cols . CARDINAL ) .

It was further announced that the person appointed would have the right of access to all relevant papers and the right to request additional information from the departments and organisations concerned . For the purposes of his first report , which would be published , he would examine all the arrangements set out in the White Paper ; his subsequent reports on the detailed operation of the arrangements would not be published , but ORG would be informed of any findings of a general nature and of any changes that were made in the arrangements ( ibid . ) .

ORG Lord PERSON , a Lord of Appeal in Ordinary since DATE , was appointed to carry out the review . In his first report , published in DATE , Lord PERSON recorded , inter alia , that , on the basis of a detailed examination of apparently typical cases selected at random , he was satisfied

( i ) ORG that , in each case , the information provided by the applicant authorities to the Secretary of ORG in support of the issue of a warrant was stated with accuracy and candour and that the procedures followed within the applicant authorities for vetting applications before submission to the Secretary of ORG were appropriate to detect and correct any departure from proper standards ;

( ii ) that warrants were not applied for save in proper cases and were not continued any longer than was necessary to carry out their legitimate purpose .

Lord PERSON further found from his examination of the system that all products of interception not directly relevant to the purpose for which the warrant was granted were speedily destroyed and that such material as was directly relevant to that purpose was given no wider circulation than was essential for carrying it out .

In DATE , Lord PERSON submitted his second report . As the Secretary of ORG informed ORG , Lord PERSON ’s general conclusion was that during DATE the procedure for the interception of communications had continued to work satisfactorily and the principles set out in the White Paper had been conscientiously observed by all departments concerned .

In DATE , Lord PERSON resigned his position and was succeeded by Lord PERSON of GPE , a Lord of Appeal in Ordinary since DATE .

ORG The process known as " metering " involves the use of a device called QUANTITY check printer which registers the numbers dialled on a particular telephone and the time and duration of each call . It is a process which was designed by ORG for its own purposes as the corporation responsible for the provision of telephone services . Those purposes include ensuring that the subscriber is correctly charged , investigating complaints of poor quality service and checking possible abuse of the telephone service . When " metering " a telephone , ORG - now ORG ( see paragraph CARDINAL above ) - makes use only of signals sent to itself .

In the case of ORG , the ORG does not require the keeping of records of this kind but , if the records are kept , ORG may be compelled to produce them in evidence in civil or criminal cases in the ordinary way , namely by means of a subpoena duces tecum . In this respect the position of ORG does not differ from that of any other party holding relevant records as , for instance , a banker . Neither the police nor the ORG are empowered to direct or compel the production of the ORG records otherwise than by the normal means .

However , ORG do on occasions make and provide such records at the request of the police if the information is essential to police enquiries in relation to serious crime and can not be obtained from other sources . This practice has been made public in answer to parliamentary questions on CARDINAL occasion ( see , for example , the statement by the ORG Secretary to ORG , ORG , DATE , cols . CARDINAL - CARDINAL ) .

Commission , Government and applicant are agreed that , at least in theory , judicial remedies are available in GPE and GPE , in both the civil and the criminal courts , in respect of interceptions of communications carried out unlawfully . The remedies referred to by the Government were summarised in the pleadings as follows :

( i ) ORG In the event of any interception or disclosure of intercepted material effected by a ORG employee " contrary to duty " or " improperly " and without a warrant of the Secretary of ORG , a criminal offence would be committed under the Telegraph Acts DATE and DATE and ORG as regards telephone interceptions ) and under LAW DATE ( as regards postal interceptions ) ( see paragraphs CARDINAL above ) . On complaint that communications had been unlawfully intercepted , it would be the duty of the police to investigate the matter and to initiate a prosecution if satisfied that an offence had been committed . If the police failed to prosecute , it would be open to the complainant himself to commence a private prosecution .

( ii ) In addition to ( i ) above , in a case of unlawful interception by a ORG employee without a warrant , an individual could obtain an injunction from the domestic courts to restrain the person or persons concerned and ORG itself from carrying out further unlawful interception of his communications : such an injunction is available to any person who can show that a private right or interest has been interfered with by a criminal act ( see , for example , PERSON v. ORG , [ DATE ] CARDINAL All England Law Reports CARDINAL ; ORG , [ DATE ] CARDINAL All England Law Reports CARDINAL ) .

( iii ) On the same grounds , an action would lie for an injunction to restrain the divulging or publication of the contents of intercepted communications by employees of ORG , otherwise than under a warrant of the Secretary of ORG , or to any person other than the police .

Besides these remedies , unauthorised interference with mail would normally constitute the tort of trespass to ( that is , wrongful interference with ) chattels and so give rise to a civil action for damages .

ORG The Government further pointed to the following possible non - judicial remedies :

( i ) ORG In the event that the police were themselves implicated in an interception carried out without a warrant , a complaint could additionally be lodged under LAW of LAW DATE , which a chief officer of police would , by the terms of the LAW , be obliged to investigate and , if an offence appeared to him to have been committed , to refer to ORG .

( ii ) If a complainant were able to establish merely that the police or the Secretary of ORG had misappreciated the facts or that there was not an adequate case for imposing an interception , the individual concerned would be able to complain directly to the Secretary of ORG himself or through his Member of ORG : if a complainant were to give the ORG Secretary information which suggested that the grounds on which a warrant had been issued did not in fact fall within the published criteria or were inadequate or mistaken , the ORG Secretary would immediately cause it to be investigated and , if the complaint were found to be justified , would immediately cancel the warrant .

( iii ) Similarly , if there were non - compliance with any of the relevant administrative rules of procedure set out in the PERSON report and ORG , a remedy would lie through complaint to the Secretary of ORG who would , in a proper case , cancel or revoke a warrant and thereby terminate an interception which was being improperly carried out .

According to the Government , in practice there never has been a case where a complaint in any of the CARDINAL above circumstances has proved to be well - founded .


Violation of P1-1;Violation of Art. 8;Non-pecuniary damage - financial award;Pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings

The applicants are members of CARDINAL family . Mr PERSON , born in DATE ( the first applicant ) , and PERSON Tuleshova , born in DATE ( the second applicant ) , are husband and wife ; PERSON PERSON , born in DATE , and Mr PERSON , born in DATE , are their sons ; Mr PERSON , born in DATE , is the second applicant 's father . They , and CARDINAL other children of the first and the second applicants , live together in CARDINAL household in the town of GPE .

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

In DATE Mr Kh bought a house from company B. It was a former shop at FAC , PERSON , which PERSON intended to convert into a dwelling . The house was free from any third party claim .

In DATE the ORG of GPE examined an unrelated commercial dispute between company B and a third party and found that B had failed to perform as stipulated in their contract . The house was listed as pledged property in the contract and the court ordered its sale . Apparently the court was not aware that the house had already been sold to Kh .

The sale was administered by the court bailiff . The price was set at MONEY ( ORG ) , the pre - redenomination equivalent of ORG CARDINAL , or MONEY . The first applicant offered to buy the house , and on DATE the ORG approved the sale . This decision took effect on DATE . The first applicant was registered with the real estate registry ( DATE технической инвентаризации ) as the owner of the house . Apparently the first applicant was not aware of PERSON 's right to the house and PERSON was not aware of the sale to the first applicant .

On DATE the PERSON local administration granted a reconstruction permit by virtue of which the first applicant converted the shop into a dwelling of QUANTITY . He moved into it with CARDINAL members of his family including the other applicants .

In DATE Kh seized the ORG with a property claim in respect of the house and challenged its sale by the bailiff . The first applicant lodged a counterclaim invoking his title to the house .

On DATE the ORG found that the bailiff had sold the house to the first applicant unlawfully and declared the sale null and void . It annulled the first applicant 's title and ordered his and his family 's eviction . The first applicant was awarded RUR CARDINAL as reimbursement of the house purchase price by company B and the other party to the contract mentioned in paragraph CARDINAL above , and RUR CARDINAL of reconstruction costs payable by Kh .

On DATE the applicants were served with an eviction order .

The first applicant and PERSON appealed .

Company B and the other party both failed to pay the amount due to the applicant under the judgment ( RUR CARDINAL ) as they became insolvent .

On DATE ORG upheld the first instance judgment as to the substance , but reversed the award of the reconstruction costs because such a claim had never been made by the applicants .

On DATE the Presidium of the NORP ORG quashed on supervisory review the decision of DATE by which the sale of the house to the first applicant had been ordered .

On DATE ORG , apparently following the first applicant 's request for supervisory review , appointed an expert to assess the market value of the house . The evaluation report issued on DATE estimated it as FAC ( then an equivalent of QUANTITY ( ORG ) ) . On DATE ORG rejected the request for supervisory review .

On DATE the applicants brought proceedings for damages against Kh , ORG , ORG and ORG . They claimed pecuniary damages of RUR CARDINAL including the reconstruction costs ( RUR CARDINAL,CARDINAL ) , the sum of RUR CARDINAL , i.e. the money which had not been paid by the insolvent debtors , and non - pecuniary damages of RUR CARDINAL . In support of their pecuniary claims they referred to the expert evaluation of CARDINAL DATE . The court joined PERSON to the proceedings as a co - defendant .

On DATE ORG examined the case . It found that PERSON had never authorised the reconstruction works on his LOC and , relying on LAW , held that these expenses were incurred as a result of the authorities ' unlawful conduct and must be reimbursed by the ORG . The first applicant was awarded RUR CARDINAL ( then the equivalent of about ORG CARDINAL,CARDINAL ) to be paid by ORG . In so far as the applicants claimed the reimbursement of ORG CARDINAL , the court held that the first applicant “ had not made sufficient effort to recover the debt ” from company B and the other party . The remaining pecuniary and non - pecuniary claims including those by the other applicants were dismissed on the grounds that the applicants had not adduced sufficient proof of the amount they claimed as damages .

On DATE the NORP ORG upheld the judgment of DATE .

On DATE the applicants were ordered to leave the house by DATE .

The applicants challenged the eviction order claiming that the award had not been paid and that no other dwelling had been made available to them .

On DATE the ORG of GPE dismissed the applicants ' challenge to the eviction order . This decision was upheld on appeal by ORG on DATE .

On DATE the ORG of GPE examined another request by the applicants and adjourned the eviction until DATE . The applicants appealed claiming that this was insufficient and requested an adjournment until social housing could be allocated . The extension was refused .

DATE the applicants were served the eviction order CARDINAL times , each time with a new deadline . The applicants unsuccessfully challenged the order every time it was served .

On DATE the bailiff of ORG of GPE informed the first applicant that the bailiff service was no longer competent to enforce awards against the ORG . He instructed the first applicant to claim his award under the judgment of DATE directly from ORG .

On DATE the applicants and the rest of the family were evicted from the house .

On DATE they were granted social housing in a municipal hostel where they have been living since then . For CARDINAL family members they were allocated a QUANTITY flat comprising CARDINAL rooms . The toilet , bathroom and cooking facilities are shared with other flats on the same floor , and the residence has central heating but no gas or hot water supply . The applicants received this accommodation under the terms of a social tenancy and have to pay rent . At present QUANTITY family members live in this dwelling .

On DATE ORG informed the second applicant that the payment due to the first applicant pursuant to the judgment had been suspended because the enforcement documents had been sent to ORG “ for the inspection of the materials of the [ applicants ' ] court dispute ” . It promised to “ keep the applicants informed about the outcome of the challenge and its legal assessment ” .

On DATE ORG paid the applicant RUR CARDINAL ( then the equivalent of about EUR CARDINAL,CARDINAL ) .

On CARDINAL DATE the applicants obtained an expert evaluation of the market value of their social housing , which was estimated at RUR CARDINAL,CARDINAL ( then the equivalent of about ORG CARDINAL,CARDINAL ) .

Article CARDINAL § CARDINAL of LAW of GPE provides that the damage caused to the person or property of a citizen must be compensated in full by the person who caused the damage . Pursuant to LAW , a ORG agency or a ORG official is liable to a citizen for damage caused by their unlawful actions or failure to act . Such damage is to be compensated at the expense of the federal or regional treasury .

Articles CARDINAL and QUANTITY of LAW provide for compensation for non - pecuniary damage . Article CARDINAL states , in particular , that non - pecuniary damage shall be compensated irrespective of any award for pecuniary damage .

The officially fixed reference rates of the market value of residential real estate are periodically published by ORG ( ORG ) and are mandatory for the calculation of ORG - funded housing subsidies . Directive No . CARDINAL of CARDINAL DATE stated that in DATE the average price of residential real estate in GPE was RUR CARDINAL,CARDINAL ( then the equivalent of about ORG CARDINAL ) per square metre .


Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova

The applicants , PERSON and GPE , are NORP nationals who were born in DATE and DATE respectively and live in GPE . They were represented before the ORG by PERSON , a lawyer practising in GPE ( GPE ) . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , from ORG .

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

On DATE a certain PERSON brought an action before ORG ( okresní soud ) against the applicants seeking the payment of ORG CARDINAL,CARDINAL ) regarding construction works he had carried out for them .

On DATE the applicants filed a counterclaim for the payment of CZK CARDINAL ( EUR CARDINAL ) . At a hearing of DATE , ORG decided to exclude the counterclaim for a separate examination . A written decision in this respect was adopted on DATE .

In a judgment of DATE ORG partly granted PERSON ’s action and ordered the applicants to pay him CZK CARDINAL,CARDINAL.CARDINAL ( ORG CARDINAL,CARDINAL ) with interest on late payment .

On DATE ORG ( krajský soud ) , upon the applicants’ appeal , modified ORG judgment in that it dismissed PERSON ’s action .

In the meantime , on DATE , ORG had partly stayed the proceedings on the applicants’ counterclaim and ordered PERSON to pay them CZK CARDINAL,CARDINAL ( ORG CARDINAL,CARDINAL ) .

On DATE ORG quashed this judgment in respect of the court ’s order that PERSON had to pay the applicants the sum requested and reimburse them incurred costs and expenses , and sent this part of the case to ORG .

It appears that the proceedings are still pending .

The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the ORG ’s decision in the case of PERSON v. GPE , no . MONEY ( dec . ) , § § CARDINAL - CARDINAL , DATE ) .


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

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

The applicant was a member of ORG ( “ the police ” ) from DATE . He was attached to ORG , the then secret police . ORG of DATE entitled members of the police , in case of their dismissal , to several allowances the amount of which depended on the duration of their service in the police . On DATE the applicant was dismissed for redundancy pursuant to LAW ) ( a ) of ORG of DATE , as amended . Prior to the applicant ’s dismissal , on DATE , the aforesaid LAW was amended in that , pursuant to LAW ( CARDINAL ) , members of the police who were dismissed for redundancy between CARDINAL DATE and CARDINAL DATE were not entitled to the above allowances .

On CARDINAL DATE the applicant filed a petition to ORG pursuant to LAW . He alleged that his fundamental rights were violated in that , as a result of enactment of LAW of ORG of DATE , he was deprived of allowances to which he had been entitled , in case of dismissal , throughout his previous service in the police . The applicant explained that he had unsuccessfully requested persons who had standing to do so to bring proceedings before ORG with a view to having the conformity of the relevant law with the LAW determined .

On DATE ORG rejected the petition as being manifestly ill - founded . The decision stated that in the applicant ’s case there was no appearance of a violation of rights which ORG could examine in proceedings under LAW ) of the LAW .

In a letter of CARDINAL DATE the president of ORG informed the applicant , in reply to the latter ’s complaint , that ORG lacked jurisdiction to examine whether a law was in conformity with the LAW in proceedings brought under LAW ) of the LAW .

On DATE the applicant claimed , before ORG , compensation for damage caused by the above amendment to ORG of DATE . The applicant requested that the ORG seize ORG with the preliminary issue whether or not LAW of ORG of DATE was in conformity with LAW .

On DATE ORG dismissed the applicant ’s request that the proceedings concerning his claim for damages be stayed and that the preliminary question be submitted to ORG . The decision stated that ORG did not share the applicant ’s view that LAW of ORG of DATE , as amended on DATE , was contrary to the LAW , or to any law or to any international treaty to which GPE was a party as required by LAW b ) of LAW .

On DATE ORG upheld ORG decision of CARDINAL DATE .

On DATE the ORG delivered a judgment by which it dismissed the applicant ’s claim for damages . ORG noted that the applicant did not complain that his former employer had acted unlawfully when it had not paid the allowances in question to the applicant upon the termination of his service in the police . The decision stated that the aim of the applicant ’s action was to invalidate LAW of ORG of DATE . As the applicant had failed to show that the defendant - GPE represented by ORG - had caused damage to him , his action could not be granted .

The applicant appealed and claimed that the question whether LAW of the of ORG of DATE was in conformity with the LAW should first be determined by ORG .

On DATE ORG upheld ORG judgment of DATE .

LAW , as in force at the relevant time , provides that ORG may start proceedings upon a petition ( “ podnet ” ) lodged by legal or natural persons alleging a violation of their rights .

In accordance with ORG practice ( decision ORG CARDINAL/CARDINAL of DATE ) , ORG can not proceed with a petition under LAW ) of the LAW when the issue to be determined depends on the assessment whether or not a law is in conformity with the LAW as such proceedings can be brought only by CARDINAL of the Members of ORG , by the President of GPE , by the Government , by a court ( in the context of examination of a case pending before it ) or by ORG .

Pursuant to LAW b ) of LAW , a court shall suspend proceedings when it comes to the conclusion that a generally binding legal rule concerning the subject - matter of the case before it is contrary to LAW , to a law or to an international treaty by which GPE is bound . In such a case the issue concerning the possible conflict of laws shall be submitted for adjudication to ORG .


The applicant was born in DATE and lives in Szentendre .

On DATE ORG filed an action for divorce and child custody against the applicant before ORG . She further indicated in the motion that she wished to settle the division of matrimonial property in separate legal proceedings .

On DATE the plaintiff requested ORG to establish her ownership of a common real estate and to divide the matrimonial property .

After having held several hearings , ORG delivered a partial judgment on DATE , dissolving the parties’ marriage , deciding about the child ’s placement and regulating the applicant ’s access rights . On appeal ORG upheld the first instance judgment on DATE .

As regards the division of matrimonial property , ORG delivered its judgment on DATE , which was partly modified on appeal by ORG on DATE .

Despite the final judgment regulating the applicant ’s access rights ( see paragraph CARDINAL above ) , the mother failed to comply with the arrangements , therefore preventing the applicant from seeing his son .

On DATE the applicant brought an action before the Budapest II / III District Court , requesting the modification of his child ’s placement . Moreover , he requested joint exercise of his parental rights related to the management of his child ’s property . He claimed that the mother had not acted in the child ’s best interest when concluding an exchange agreement concerning a real estate in the child ’s property , which had been approved by the competent guardianship authority on DATE .

On DATE ORG dismissed the applicant ’s action . On appeal , ORG upheld the first - instance judgment on DATE .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque

The applicant was born in DATE . He resides in GPE in GPE , where he is employed as a police officer with ORG of GPE ( ORG unutrašnjih poslova PERSON , hereinafter “ the NORP ” ) .

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

On DATE and DATE respectively , ORG adopted CARDINAL decisions whereby , inter alia , all of its employees who resided and worked in GPE were to be paid double salaries .

On DATE the ORG issued a decision stating that the police officers in question were entitled to have their salaries increased by PERCENT , depending on the circumstances .

NORP In reality , the applicant only received the increase approved by ORG , amounting to significantly less than the doubling of his salary envisaged by the Government .

On DATE , therefore , the applicant filed a civil claim against ORG with ORG ( PERSON opštinski sud ) in GPE , seeking payment of the difference between the salary increase received and that granted by the Government . The applicant further requested the payment of unspecified amounts on account of the related pension and disability insurance contributions .

On DATE ORG ruled in favour of the applicant and ordered his employer to pay :

i. MONEY ( “ ORG ” ) ( MONEY ( “ EUR ” ) at the relevant time ) in respect of the difference between the salary received from DATE and that granted by the ORG , plus statutory interest ;

ii . the extra pension and disability insurance contributions for the above period in respect of this additional salary to the relevant ORG fund ; and

iii . ORG CARDINAL ( approximately EUR CARDINAL ) for his legal costs .

On DATE ORG ( Okružni sud ) in GPE reversed that judgment and rejected the applicant ’s claim . In its reasoning ORG held , inter alia , that the applicable domestic regulation was contained in the decision of ORG adopted on DATE . This judgment was served on the applicant on DATE .

Many of the applicant ’s colleagues ( hereinafter “ the plaintiffs ” ) had lodged separate claims with ORG concerning the same issue , some of which were successful while others were unsuccessful : in CARDINAL other judgments rendered DATE and DATE , the same ORG ruled in favour of the plaintiffs , notwithstanding the fact that their claims were based on the same facts as those in the applicant ’s case and concerned identical legal issues . In its reasoning in these other cases , ORG held , inter alia , that the GPE salaries had to be paid in accordance with ORG decisions of DATE and/or DATE .

Of the CARDINAL judgments mentioned above , in CARDINAL cases the respondent lodged appeals on points of law ( revizije ) with ORG ( PERSON , see paragraphs CARDINAL and CARDINAL below ) . In the remaining CARDINAL cases , however , the respondent lodged no such appeal , apparently in the light of the statutory threshold ( see paragraph CARDINAL below ) .

The Government provided examples of relevant case - law adopted by ORG , in particular six separate judgments , of which one had been issued on DATE and the remaining CARDINAL between DATE and DATE . In each case , deciding upon appeals on points of law , ORG had ruled against the plaintiffs , albeit with somewhat different reasoning compared with that employed by ORG . In particular , ORG had held , inter alia , that the ORG ’s decision of CARDINAL DATE was not directly applicable .

In the meantime , on DATE , ORG ( PERSON odeljenje ) of ORG held a meeting which was meant to resolve the issue of how to rule in all cases like the applicant ’s ( see paragraph CARDINAL below ) . In TIME of this meeting , it was noted , inter alia , that in CARDINAL cases registered in DATE where appeals on points of law had been considered , ORG had in fact confirmed the lower courts’ rulings in favour of the plaintiffs ( PERSON CARDINAL/CARDINAL and PERSON CARDINAL/CARDINAL ) . The meeting , however , was ultimately adjourned pending the outcome of a case which had been brought before ORG ( ORG ) concerning the abstract review of the constitutionality of the ORG ’s decision adopted on DATE . On DATE ORG held that the impugned decision was unconstitutional .

In CARDINAL separate cases the plaintiffs thereafter lodged their appeals with ORG ( ustavne žalbe ) , but , according to the information contained in the case file , these proceedings are all still pending .

The applicant was not entitled to lodge an appeal on points of law since the value of his claim was below the threshold of QUANTITY . He did not attempt to obtain constitutional redress .

The relevant provisions are set out in the PERSON and Others v. GPE judgment ( nos . CARDINAL , CARDINAL/CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL , DATE , DATE , DATE , GPE , ORG , CARDINAL , CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL , GPE , CARDINAL , CARDINAL/CARDINAL , GPE , DATE , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL , § § DATE , DATE ) .

LAW provides , inter alia , that all parties shall be entitled to the equal protection of their rights .

Articles CARDINAL § CARDINAL , CARDINAL and CARDINAL provide that parties may file an appeal on points of law ( revizija ) with ORG . They may do so within DATE following receipt of a final decision rendered at second instance , and only if the relevant legislation , procedural or substantive , has been breached by the lower courts .

Article CARDINAL § CARDINAL provides , inter alia , that an appeal on points of law is “ not admissible ” in pecuniary disputes ( kad se tužbeni zahtev odnosi na potraživanje u novcu ) where the “ value of the part of the final judgment being contested does not exceed QUANTITY ” .

Article CARDINAL provides that an appeal on points of law is admissible in employment - related cases which concern one ’s hiring or dismissal or the “ existence ” of one ’s employment ( u parnicama o sporovima o zasnivanju , postojanju i prestanku radnog odnosa )

NORP In accordance with Articles CARDINAL and CARDINAL - CARDINAL , inter alia , ORG , should it accept an appeal on points of law lodged by one of the parties concerned , has the power to overturn and/or amend the impugned judgment or quash it and order a re - trial before the lower courts .

Article CARDINAL provides that a case may be re - opened if ORG has in the meantime rendered a judgment in respect of GPE concerning the same or a similar legal issue .

Article QUANTITY provides , inter alia , that a meeting of a division ( sednica odeljenja ) of ORG shall be held if there is an issue as regards the consistency of its case - law . Any opinions ( pravna shvatanja ) adopted in such a meeting are binding for all panels ( veća ) of the division in question .


Remainder inadmissible;Violation of Art. 6-1

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni

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

On DATE ORG of GPE convicted the applicant of theft and sentenced him to DATE imprisonment . On DATE ORG upheld the judgment .

On DATE the applicant asked the President of ORG to apply for supervisory review of the above judgments on a number of legal grounds . After leave had been granted , on DATE the ORG of ORG upheld the conviction but reduced the applicant ’s sentence to DATE and DATE because of an error in the calculation of the term . The applicant was not brought to the hearing .

The applicant made further attempts to obtain a review of his conviction and sentence . Apparently in reply to CARDINAL of those applications , by a letter of CARDINAL DATE ORG notified the applicant that they had applied for supervisory review of the judgments of DATE and DATE . It appears that the scope of the application for review was limited to an argument that the trial court had erred in determining the prison regime to be applied to the applicant without having regard to the cancellation of his conviction in DATE for another offence . The applicant received that letter on DATE .

It appears that on DATE the applicant submitted his observations in relation to that request . However , in the meantime , on DATE the ORG of ORG had already examined the supervisory review application and found that the DATE conviction had been cancelled in DATE and should not have been taken into consideration when the trial court decided whether there had been a repeated commission of a criminal offence ( recidivism ) . It concluded that the applicant ’s acts had constituted dangerous rather than “ particularly ” dangerous recidivism , and changed the type of the correctional facility in which the applicant was to serve his sentence . The ORG upheld the judgments of CARDINAL DATE and DATE in the remaining part . The applicant was not brought to that hearing . On DATE he was told that the review had taken place , but a copy of the decision was not given to him .

The applicant served his sentence in correctional colony no . LAW situated in the village of PERSON in GPE .

According to the applicant , on DATE the colony administration informed the detainees that a special - purpose squad would be brought to the colony “ to discipline detainees ” .

On DATE CARDINAL officers of the special - purpose squad arrived at the colony in order to “ render practical assistance in carrying out searches and prophylactic measures ” . On DATE the wardens and the officers of the squad searched the applicant ’s cell . The applicant objected to the search and the officers intimidated him , beat him up and damaged his personal belongings . The applicant received no medical assistance and the colony doctor refused to record his injuries . The colony administration subsequently refused to dispatch his complaints to the prosecutor .

According to the ORG , the Director of ORG of ORG ordered a series of searches in detention facilities with a view to seizing unauthorised items kept by detainees in their cells which could be used for an escape .

Searches were carried out in the applicant ’s cell on DATE . According to a report dated DATE , the use of force was accounted for by the applicant ’s insults to officers . A report drawn up on DATE indicated that the applicant had uttered insults and threats of reprisals . The Government submitted copies of reports by CARDINAL officers to their superior , stating that during the search on DATE the applicant had uttered insults and threats of reprisals to the officers . Another officer stated that the applicant had objected to the search and had swung his hands ; because of his refusal to stop after a warning , his hand had been held behind his back , he “ had been held in a posture preventing resistance ” and had been placed in a separate room pending the search in his cell . A report drawn up by the colony medical assistant indicated that no injuries had been detected on the applicant ’s body .

Several detainees complained to ORG , in charge of supervising penitentiary institutions , about the events of DATE . They alleged that they and certain other detainees , including the applicant , had been beaten up by the squad members , with the tacit agreement of the colony administration .

On DATE the Bratsk Penitentiary Supervising Prosecutor ’s Office refused to initiate criminal proceedings against the squad members . The assistant prosecutor indicated that the squad intervention had been duly authorised by ORG on DATE ( decrees nos . CARDINAL and CARDINAL ) . The squad officers wore camouflage with their ORG numbers and balaclava masks . On DATE during the search of his cell the applicant had refused to comply with orders ( to stay in the corridor against the wall ) , and had threatened the officers with reprisals , insulting them and pushing them away . Therefore , on an order from the colony chief officer the applicant was immobilised . During another cell search on DATE the applicant behaved in the same way and also incited other detainees to riot . In order to put a stop to his actions he was immobilised . Special means and weapons were not used . The assistant prosecutor interrogated the complainants and other detainees , some of whom however had stated that special means or weapons had been used against detainees .

On DATE , on a complaint by the applicant , an official of ORG informed him as follows . On DATE CARDINAL officers of the special - purpose squad had arrived in the colony . The applicant prevented the wardens from carrying out searches and assaulted them verbally and physically . Following the searches , the doctor visited the detainees to find out if they had sustained any injuries . The detainees did not make any complaints or requests .

Detainees and the premises where they live may be searched ( Article CARDINAL § § CARDINAL and CARDINAL ) .

Physical force , special means or weapons may be used against detainees if they offer resistance to the officers , persistently disobey lawful demands of the officers , engage in riotous conduct , take part in mass disorders , take hostages , attack individuals or commit other publicly dangerous acts , escape from the penitentiary institution or attempt to harm themselves or others ( LAW ) . The procedure for application of these security measures is determined in NORP legislation ( Article CARDINAL § CARDINAL ) .

When using physical force , special means or weapons , the penitentiary officers must :

( CARDINAL ) NORP state their intention to use them and afford the detainee(s ) sufficient time to comply with their demands unless a delay would imperil life or limb of the officers or detainees ;

( CARDINAL ) NORP ensure the least possible harm to detainees and provide medical assistance ;

( CARDINAL ) report every incident involving the use of physical force , special means or weapons to their immediate superiors ( section CARDINAL ) .

Rubber truncheons may be used to

( CARDINAL ) stop assaults on officers , detainees or civilians ;

( CARDINAL ) NORP repress mass disorders or group violations of public order by detainees , as well as to apprehend ( задержание ) offenders who persistently disobey or resist the officers ( section CARDINAL ) .

Under LAW of LAW of Criminal Procedure , in force at the material time , a prosecutor took part in a hearing before a supervisory review court . A convict and his or her counsel could be summoned if the court found it necessary . If summoned , they were to be afforded an opportunity to take cognisance of the application for supervisory review and to make oral submissions at the hearing . By its ruling of DATE , ORG declared LAW unconstitutional in so far as it allowed a supervisory - instance court to examine the case without providing the convicted or acquitted person and their counsel with an opportunity to know the contents of the request for supervisory review lodged by the prosecutor , if the latter sought annulment of the final judgment on grounds unfavourable to that person . ORG made the same findings in respect of the lack of a legal requirement to notify the convicted or acquitted person and their counsel of the time when and place where the supervisory review hearing would take place . Failing that , the above persons would be unable to state their position to the court .

A supervisory review court was not bound by the scope of the application for supervisory review and was under an obligation to review the criminal case in its entirety ( LAW . It could uphold , amend or quash any of the earlier judgments , vary the sentence , discontinue the criminal proceedings or remit the matter for a new consideration by the trial or appeal court . It could not , however , increase the sentence or re - categorise the defendant ’s actions as a more serious offence ( ibid . ) .