Violation of Art. 7;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger

The applicant was born in DATE and lives in GPE , GPE . He served as the acting Director General of ORG ( erastamisagentuur ) ( “ the NORP ” ) at the material time .

On DATE ORG ( Riigikogu ) decided that ORG ( “ ER ” ) , a public limited company in possession of the NORP railways , was to be privatised in accordance with LAW ( Erastamisseadus ) . The privatisation process was accompanied by considerable political debate as well as by pressure from various stakeholders on the persons conducting the privatisation . The company was in a difficult economic situation and in need of investment . LAW , it was the responsibility of the ORG to carry out the privatisation of state assets .

On DATE the Government approved the plan for the privatisation of certain state assets in DATE . According to the plan , the ORG had to dispose of the majority shareholding in ORG ( PERCENT of the shares ) to a strategic investor . In order to increase its capacity and competitiveness , investments in the railway infrastructure were established as supplementary conditions . The public call for tenders was to be announced by DATE so that the privatisation could be carried out in the course of DATE .

On DATE the ORG announced an international CARDINAL - stage tender procedure with preliminary negotiations for the privatisation of PERCENT of shares in ORG .

On DATE the Government designated PERSON , the Minister of ORG , as the person responsible for privatisation negotiations . PERSON was also a member of ORG ( “ the Board ” ) .

By resolution of the ORG dated DATE , CARDINAL bidders were invited to participate in the second stage of the tender procedure . ORG also established supplementary conditions with regard to the second stage of the procedure , including the submission of a business plan .

By DATE the date on which the submission of final bids was due DATE bidders had submitted their bids . According to the decision of ORG , the bid of ORG was deemed the best one . The bid submitted by ORG ( “ ORG ” ) was deemed the second - best bid .

Since Rail Estonia ApS refused to enter into the privatisation agreement and to pay the purchase price for the shares of ORG in accordance with its bid by the due date prescribed by the ORG DATE ) , ORG was invited to sign the privatisation agreement .

On DATE the agreement for privatisation of PERCENT of the shares in ORG was signed between GPE , ORG and ORG . According to the agreement , ORG assumed the obligation to pay CARDINAL NORP kroons ( EEK ) ( approximately corresponding to QUANTITY ( ORG ) ) for the shares as well as to invest at least EEK CARDINAL ( EUR CARDINAL,CARDINAL,CARDINAL ) in DATE . Simultaneously with the privatisation agreement a ORG agreement of ORG was signed between GPE and ORG . The applicant , as the acting Director General of the ORG , signed the privatisation agreement and PERSON , as ORG , signed the ORG agreement on behalf of the ORG .

The agreed transaction of the privatisation of PERCENT of shares in ORG was completed by DATE . By the same date ORG had furnished the required warranties for performance of the privatisation agreement and transferred to the ORG the agreed purchase price for the shares .

At the time when the application to the ORG was lodged ( DATE ) , ORG was , in the applicant ’s submission , a successful company in which the ORG earned CARDINAL times more for its PERCENT shareholding than it had previously done with a PERCENT stake . Moreover , before the conclusion of the agreement for the privatisation of ORG , the company had been in a pre - insolvency situation where short - term obligations ( such as the payment of salaries ) had been financed by means of bank loans . Failure to conclude the privatisation agreement could have had extremely serious consequences for the NORP economy as a whole ( in particular , the insolvency of the railway company and the loss of large transit flows and of expected tax revenues ) .

The privatisation agreement contained a section concerning representations and warranties , including “ Representations and Warranties of the State ” . The criminal charges brought against the applicant related to the confirmations given by the ORG in respect of possible claims of AS Valga Külmvagunite Depoo , an insolvent public limited company , and in connection with the purchase of locomotives of NORP origin .

According to the applicant , the management of ORG had failed to furnish sufficient information to the representatives of ORG concerning possible claims by the insolvent ORG against ORG .

Since ORG had bid a certain amount of money for PERCENT of shares in ORG and the amount of the bid could not be changed subsequently in connection with any possible obligations arising later , possible claims by ORG constituted a material risk for ORG . Considering the possible claims which had not been disclosed on the balance sheet of ORG , the amount and validity of which were unclear , the parties to the privatisation agreement agreed on certain guarantees , formulated in section CARDINAL ( p ) of the agreement . Under this provision , the ORG undertook to provide ORG with the opportunity to examine all circumstances concerning the claims and court cases in relation to ORG and its insolvency proceedings . If ORG were to discover risks substantially and actually affecting the value of ORG that it could not have evaluated at the time of the signing of the privatisation agreement , the parties undertook to solve such questions at the latest by DATE in good faith and by mutual agreement . For example , it was possible that the ORG would give ORG by DATE an additional warranty whereby the ORG would take partial and limited liability for the claims of ORG against ORG under certain conditions . The ORG and ORG were also entitled at their sole discretion to withdraw from the privatisation agreement and to terminate it should they not reach mutual agreement concerning the claims of AS ORG .

According to a subsequent agreement the term of DATE was extended to CARDINAL DATE . By DATE , ORG was aware that the possible claims of ORG constituted risks that substantially affected the value of ORG . In view of that circumstance , on DATE the ORG , represented by the Director General of the ORG pursuant to LAW , and ORG concluded a protocol concerning the possible claims under which the ORG furnished to ORG an additional warranty . Subject to certain conditions , the ORG undertook to indemnify ORG PERCENT of any sums exceeding EEK CARDINAL ( EUR CARDINAL ) that it might actually be required to pay to AS Valga Külmvagunite Depoo , up to the amount of EEK CARDINAL ( EUR CARDINAL ) . Furthermore , the ORG undertook to indemnify PERCENT of any sums exceeding EEK CARDINAL , up to the amount of EEK CARDINAL ( EUR CARDINAL ) .

NORP The business plan and technical and financial plan of ORG , as accepted by the resolution of the ORG on DATE , prescribed the transition to the use of locomotives of NORP origin and absolute termination of the use of locomotives of NORP / NORP origin that ORG had been using until then . However , the management of ORG – not subordinate to the Agency DATE entered into an agreement with AS PERSON and ORG on DATE for the acquisition of CARDINAL additional locomotives of NORP origin for ORG for an – allegedly unreasonably high – price of MONEY ( ORG ) ( then corresponding to approximately ORG CARDINAL ) . The acquisition of the new locomotives was at variance with the privatisation bid of ORG as accepted by the ORG and it gave rise to the danger that ORG would not be able to abide by its privatisation bid .

Due to the above circumstances , the parties – the ORG , represented by the acting Director General of the ORG , and ORG – agreed on section CARDINAL ( s ) in the privatisation agreement , containing a warranty given by the ORG to ORG . The ORG undertook to reimburse ORG for any direct damage that it might bear should ORG actually acquire the CARDINAL locomotives before ORG obtained control over the company . Several additional conditions were agreed upon , including an obligation on ORG to minimise the possible damage . For the fulfilment of potential obligations arising from the warranty , the ORG was obliged to maintain in the ORG ’s bank account the sum of EEK CARDINAL ( ORG CARDINAL ) until the grounds for claims regarding the warranty had ceased to exist , but in any case not for DATE . The maximum potential ORG liability under this warranty was EEK CARDINAL ( EUR CARDINAL ) . The parties considered the possible direct damage covered by this warranty to be debts relating to the privatised property outside the scope of privatisation , as described in section CARDINAL(CARDINAL ) of LAW . The ORG was entitled at its sole discretion and upon notice to ORG but at the latest by DATE to withdraw this warranty , to withdraw from the privatisation agreement and to terminate it .

The applicant was appointed acting Director General of the ORG by its ORG on DATE . According to LAW , the Director General was not a member of ORG . As the acting Director General , the applicant was responsible for execution of the principal decisions of the Government and ORG . He was entitled and obliged to manage the everyday activities of the ORG , including entering into privatisation agreements .

NORP In DATE ORG ( ORG ) gave its opinion concerning the lawfulness of the privatisation of the shares in ORG to ORG for information and for a decision on whether criminal proceedings needed to be initiated . It was found that the applicant and ORG had acted beyond their authority in assuming financial obligations for the ORG . ORG was of the view that they had done so without any legal grounds .

On DATE ORG ( prokuratuur ) informed the Auditor General ( riigikontrolör ) that criminal proceedings had not been initiated . According to ORG , the agreements had not yet materialised ; moreover , they had been concluded in accordance with the decisions of ORG and the ORG and there existed legal grounds for covering debts and obligations relating to privatised assets from the privatisation proceeds . There had been no misuse of official position or significant damage ( either material or moral ) to national interests within the meaning of LAW ( PERSON ) .

In a press release from ORG , dated DATE , ORG ( peaprokurör ) confirmed that it had not been unlawful to take certain conditional risks in the agreements concerned . According to the applicable legislation , payments could be made from privatisation proceeds without assuming any liability for the ORG budget . He stated that the refusal to initiate criminal proceedings against the applicant and PERSON had been well - founded and lawful .

By a letter of CARDINAL DATE to ORG again requested that initiation of criminal proceedings in respect of the applicant be considered . He referred to the conclusion on DATE of a protocol concerning possible claims by ORG as a new circumstance .

On DATE the head of ORG initiated criminal proceedings against the applicant .

The applicant was charged with misuse of his official position in giving the representations and warranties in the privatisation agreement described above . According to the charges , he had created a situation whereby the preservation of the ORG ’s assets might have been jeopardised . This could be considered to have caused significant damage to national interests . Moreover , by repeatedly assuming unlawful obligations for the ORG , the applicant had cast doubt on the legitimacy and reliability of the activity of the ORG as a state institution , thus materially impairing the authority of the ORG in society , and had also damaged the reputation of GPE as a contractual partner at international level ; those acts , in aggregate , had to be considered to have caused significant damage to the ORG . Accordingly , he had committed an offence under LAW .

On DATE ORG set up an investigation committee in order to investigate the circumstances relating to the privatisation of the railways . It was headed by a member of ORG who had opposed the privatisation of ORG . The final report of the committee was approved in DATE . The results of the committee ’s investigation , condemning the privatisation , were published by the media during the criminal investigation .

On DATE ORG approved the bill of indictment . The applicant was then committed for trial before ORG ( linnakohus ) .

The applicant was also charged with DATE and subsequently convicted of – misuse of his official position in connection with the privatisation of RAS ORG ( the state - owned public limited company ORG ) . However , he did not make any complaints before the ORG in this respect .

On DATE and DATE the applicant requested ORG to return the case for additional preliminary investigation because of the CARDINAL - sidedness of the investigation . The court dismissed the requests , finding that the defence had in substance challenged the evidence and submitted additional evidence which the court would assess while deciding on the merits of the case . It considered that there were no obstacles to proceeding with the case before the court , the applicant having a right to make further requests in the course of the proceedings .

At the hearing on DATE , after the court had had the bill of indictment read out , the applicant confirmed that he understood the charges brought against him but did not plead guilty . At the hearing PERSON ( former Director General of the ORG ) gave statements as a witness in respect of the charge concerning the privatisation of PERSON .

On DATE the applicant ’s lawyer requested that PERSON , Minister of Transport and Communication and member of ORG , be questioned as a witness . T. J. had been the person in charge of the negotiations for the privatisation of ORG and was aware of the facts essential to the criminal case .

On DATE and DATE the applicant ’s lawyer submitted additional requests for admission of evidence . The latter request included a post scriptum remark asking the court to ensure that the summonses were indeed delivered to the witnesses . According to the defence counsel , several important witnesses , for example , PERSON , PERSON , PERSON and others , had not received the summonses .

At the hearing on DATE the court granted the defence counsel ’s requests to admit supplementary evidence and to summon witness T. J. Witnesses PERSON ( an official of the ORG ) and PERSON were examined at the hearing . Subsequently , the court adjourned the hearing in order to summon witness PERSON and other witnesses on whom it had not been possible to serve summonses .

At the hearing on DATE PERSON ( deputy chairperson of the management board of ORG at the material time ) was heard as a witness . The defence counsel withdrew its request to examine PERSON prosecutor asked for disclosure of the statements of all the witnesses who had submitted in writing that they would maintain their statements given earlier , during the preliminary investigation . It does not appear from the record of the court hearing that the defence disagreed with the disclosure of the written materials from the case file . As the parties did not object to closing the examination of evidence , they proceeded to legal argument .

On DATE the court heard the closing statement by the applicant . The parties made no requests . On DATE , the court delivered the operative part of the judgment , by which the applicant was convicted as charged and sentenced to CARDINAL years’ imprisonment ; DATE of the sentence were suspended .

ORG in its judgment referred to the statements from witnesses PERSON , PERSON ( erroneously described as a member of ORG ) and PERSON , who had been heard at the hearings . It also relied on statements from witnesses PERSON ( chairperson of the management board of ORG at the material time ) , PERSON ( a member of ORG whose company had at the material time given legal advice to ORG ) and PERSON ( bankruptcy trustee of ORG ) , given during the preliminary investigation , and on several items of documentary evidence . The court found that the obligations undertaken by the applicant on the ORG ’s behalf to reimburse ORG the possible costs relating to the NORP locomotives and the claim of AS ORG had no basis in law . These obligations had not been excluded from the privatisation and they had been known to the parties before the privatisation agreement had been concluded . The court noted that although on DATE the ORG had accepted the business plan of ORG , it had not made a decision to give warranties on behalf of the ORG .

ORG found , on the basis of TIME meetings , that ORG had become aware of the obligations assumed by the applicant in the privatisation agreement only retrospectively and through the media . Moreover , the court noted that even if ORG had been aware of the applicant ’s acts , it was the applicant and not the ORG who had committed the offence . The court observed that a bid could not be conditional . If ORG had discovered , after making the bid , circumstances reducing substantially the value of shares in ORG , it could have refused to conclude the agreement without any penalty . In such a case , neither of the parties could have brought any claims against the other .

ORG concluded that the applicant , assuming obligations in the sum of EEK CARDINAL,CARDINAL,CARDINAL ( EUR CARDINAL,CARDINAL,CARDINAL ) on behalf of the ORG , had created a situation where the preservation of the ORG ’s assets had been at stake . This was to be considered to have caused substantial damage to the interests of the ORG . The court considered it irrelevant that the threat to the preservation of the property of the ORG had not materialised and that the ORG had not sustained any real damage ; the existence of the threat itself was sufficient for it to find that the offence had been committed . Furthermore , the court noted that the applicant , as a high - ranking public servant , had also caused non - pecuniary damage to the ORG . By disregarding the laws , he had put in doubt the lawfulness and reliability of the ORG as a ORG institution , thereby causing substantial damage to the authority of the ORG within society and also damaging the reputation of GPE as a contractual partner internationally .

The applicant lodged an appeal with ORG ( ringkonnakohus ) . He alleged that in considering whether ORG had been aware of the disputed warranties in the privatisation agreement ORG had not heard the relevant witnesses . Only a limited number of TIME of the ORG ’s meetings had been examined by the court .

Moreover , the applicant referred to the statements made by witnesses PERSON ( Minister of ORG and a member of ORG at the material time ) and PERSON ( former Director General of the Agency ) , according to whom the privatisation of ORG had been carried out in a manner similar to the earlier privatisation of several other enterprises and no criminal proceedings had been initiated before . The applicant referred to numerous items of evidence which the court had failed to take into account or even to analyse .

The applicant complained that all but CARDINAL of the witnesses had not been heard by ORG . Nevertheless , the court had to a significant extent relied on the statements of witnesses PERSON , PERSON and PERSON By disclosing the statements of these and other witnesses at the hearing without the defence having had an opportunity to put questions to them , ORG had violated LAW ( d ) of the LAW . Moreover , the court had failed to summon PERSON , Chairperson of the ORG , a very important witness for the defence . The defence had also requested the court to summon PERSON and had informed the court of his whereabouts ; however , he had not been summoned . These facts also amounted to a violation of the procedural rules by ORG .

Furthermore , the applicant argued that ORG judgment had been poorly reasoned , basing his conviction on the reproduction of a list of documents and a reference to “ other material in the case file ” without having properly analysed the evidence and having completely disregarded most of it . For example , the applicant submitted that ORG conclusion that ORG had become aware of the obligations assumed by the applicant in the privatisation agreement only retrospectively and through the media was based only on a statement from L. as reflected in TIME the Board ’s meeting . However , PERSON had not been heard by the court .

The applicant alleged that ORG had been wrong in concluding that ORG had made no decision concerning the obligations taken by the applicant . He argued that , after ORG had accepted the business plan on DATE , he had been obliged to conclude the privatisation agreement in accordance with it . The disputed provisions had been included in the privatisation agreement precisely because ORG had accepted the bid of ORG . Furthermore , the applicant argued that there had been no causal link between his acts and the legal consequences which had ensued , as required by the case - law relating to LAW . Not only had ORG been aware of the content of the privatisation agreement , both before its conclusion and thereafter , but the agreement had been approved in substance by ORG .

The applicant disputed ORG conclusion that the obligations relating to the NORP locomotives and the claim of ORG had not been excluded from the privatisation agreement . He insisted that the notion “ excluded from the privatisation agreement ” had to be interpreted as meaning that the exclusion was specifically contained in the agreement itself . He also maintained that the exact amount and nature of these obligations had not been known to the ORG and ORG at the time of the conclusion of the privatisation agreement . In fact , these obligations had never materialised ; accordingly , they could not possibly have existed before the privatisation agreement had been signed and even less so in any defined nature or exact amount .

The applicant argued that he had not assumed obligations on behalf of the ORG , he had , rather , agreed on certain representations and warranties . In the situation where LAW did not clearly regulate privatisation agreements and GPE of DATE could not be applied in the privatisation process , the ORG undoubtedly had to follow internationally recognised norms and practices . In the case of an international tender procedure it was not conceivable that an agreement would be concluded without any representations or warranties from the seller . The applicant argued that he had acted lawfully and in accordance with section CARDINAL ) of LAW , section CARDINAL(CARDINAL ) of LAW ( Erastamisest laekuva raha kasutamise seadus ) and points CARDINAL and CARDINAL of the Government regulation concerning the Procedure for Covering Debts Relating to Privatised Assets and Expenses Relating to Privatisation of Assets ( Erastatud varaga seotud võlgade ja vara erastamisega seotud kulude katmise kord ) .

The applicant insisted that he had neither caused any damage to the ORG nor created a situation where the preservation of the ORG ’s assets had been jeopardised . Moreover , no claims had been made against the ORG under the disputed warranties in the privatisation agreement . He also challenged ORG conclusion concerning the damage to the reputation of the ORG , arguing that the court had not paid attention to the excerpts from numerous international and NORP newspapers indicating that the conclusion of the privatisation agreement and the subsequent successful performance of ORG had received positive media coverage . These showed that the privatisation had had a positive impact on the reputation of GPE . Moreover , ORG had failed to analyse what would have been the financial effects if the privatisation agreement had not been concluded , taking into account the fact that ORG had been in a pre - insolvency situation and that its insolvency could have had serious effects on the economy of the whole country .

Finally , the applicant alleged that the charges against him had been politically motivated . The privatisation of PERCENT of shares in ORG had been decided by ORG , the ORG and ORG , whose decisions the applicant had been bound to follow . However , charges had been brought only against the applicant . Moreover , ORG had repeatedly refused to initiate criminal proceedings against the applicant , finding that his acts had been lawful . Nevertheless , ORG had initiated , DATE and under strong political and public pressure , a criminal case against him , whereas no charges had been brought against T. J. or other participants in the privatisation process . In a whole series of analogous privatisation agreements , the agreement concerning the privatisation of ORG had been the only one in respect of which a criminal investigation had been initiated .

The applicant requested that ORG re - examine all the evidence in the case .

ORG heard the case on DATE . In the course of legal argument , after the prosecutor had dealt with the issue of the disclosure of witness statements , the applicant ’s counsel noted that the issue of witnesses was not of primary importance . On DATE ORG delivered the operative part of its judgment .

By the judgment of DATE ORG upheld ORG judgment . It found that the witnesses who had not appeared before ORG had informed the court that they were unable to attend the hearing . In accordance with the law of criminal procedure , their statements made during the pre - trial investigation had been read out in ORG . Moreover , ORG noted that the statements of witness PERSON had not been used by ORG against the applicant . He had changed his place of residence during the proceedings and the summons previously sent to him had been returned to the court . The applicant ’s lawyer had agreed to terminate the judicial examination without making any requests to the court . In respect of witness PERSON , whose attendance the applicant ’s lawyer had requested , ORG noted that , according to the record of ORG hearing , the defence lawyer had withdrawn his request . Moreover , in his appeal the applicant had not set out the names and addresses of the persons whom he wished to have examined by ORG , as required by LAW kriminaalkohtumenetluse seadustik ) . Neither had such a request been made at the appeal court ’s hearing . ORG also noted that it was undisputed that the applicant had concluded the agreements concerned . The only issue at stake was the legal status of the applicant ’s acts and in this context the statements of witnesses were irrelevant .

In respect of the initial refusal of ORG to initiate criminal proceedings against the applicant , ORG noted that this had concerned only one of the CARDINAL warranties , as the other one had not yet been given at that time . Moreover , according to LAW ORG koodeks ) , the refusal to initiate criminal proceedings did not preclude criminal proceedings concerning the same facts being initiated later .

ORG noted that it had been irrelevant whether ORG had become aware of the obligations taken in the privatisation agreement before or after it had been signed by the applicant , as such awareness did not render his acts lawful . ORG found that by its decision of CARDINAL DATE the ORG had accepted the business plan of ORG . However , this had not meant that the ORG had to reimburse ORG the costs relating to the purchase of NORP locomotives , but only that the ORG would not object to the use of NORP locomotives .

Furthermore , ORG held that the disputed obligations had not been excluded from the privatisation agreement , as such an exclusion should already have been made in the tender documents . The witnesses PERSON and PERSON had submitted that no obligations or debts had been excluded . ORG found that the parties had been aware of the possible obligations and that these obligations had been sufficiently clearly established for the bidders to be able to assess the probable risks and the scope of the obligations and make their bids accordingly .

The appeal court found that no legal basis had existed for the assumption of the obligations concerned . On the contrary , ORG had referred to several provisions of law which the applicant had violated in assuming the obligations .

ORG noted that the danger to the preservation of the ORG ’s assets had constituted independent damage , and not merely a precondition for the occurrence of damage , in the present case .

The court considered that the statements by witness PERSON , the letters from ORG and ORG , indicating that they had no claims against the ORG , and the excerpts from newspapers could not be taken into account when assessing the significance of the damage caused to the interests of the ORG . A court had no obligation to give its opinion on what had been published in the press . ORG observed that the applicant had been a high - ranking state official who had been working in a field attracting great public interest both nationally and internationally . It continued :

“ It is understandable that the commission of the acts of which [ the applicant ] was convicted by the judgment of ORG is not in compliance with the general sense of justice . Thus [ the applicant ’s ] acts in his capacity as an acting Director General of ORG , which disrespected the laws , put in doubt the lawfulness and reliability of the activities of ORG as a ORG institution , thus materially impairing the authority of the ORG in society , and also damaged the reputation of GPE as a contractual partner on the international level , so that those acts , in aggregate , had to be considered to have caused significant moral damage to the interests of the ORG . ”

ORG did not agree with the argument that the failure to conclude the privatisation agreement could have had extremely serious consequences for the NORP economy as a whole . It noted that , even if the agreements could not have been concluded without the disputed provisions , this did not exclude the unlawfulness of the applicant ’s acts or his guilt . Although the ORG would not have received the money for the privatisation of the shares in ORG had the privatisation agreement not been concluded , it would have retained shares of the same value .

Finally , ORG noted that the applicant had not been convicted in respect of the privatisation as such but rather of assuming certain obligations on behalf of the ORG . He had personally agreed to such obligations and was personally responsible for them .

The applicant appealed against the judgment of ORG . In addition to the arguments already raised in his appeal against ORG judgment , he emphasised that ORG had not analysed several items of evidence in his favour and had limited its analysis only to the inculpating evidence . He also argued that CARDINAL witnesses had been heard before ORG , whereas witnesses PERSON , PERSON and PERSON had not been heard , although the applicant ’s conviction had been based to a considerable extent on the statements of these witnesses . Moreover , witnesses PERSON and PERSON , who had been important from the defence ’s perspective , had not been heard . The sole reason why the defence had withdrawn the request to have PERSON in ORG had been to avoid prolonging the proceedings . In fact , ORG had adjourned a hearing in order to summon PERSON ; however , despite the fact that the defence had provided the court with his address , the court had not sent summonses to the witness .

The applicant called into question ORG argument that the statements of the witnesses PERSON , PERSON and PERSON had , in fact , been irrelevant . He asked why it had been necessary to summon these witnesses if their evidence had been irrelevant .

The applicant argued that not only had the ORG sustained no damage in connection with the warranties concerning the claim of ORG , but in fact such a claim had never existed . Thus , ORG had wrongly considered that the claim had been sufficiently clearly established . Neither had any claims been made in connection with the warranty concerning the NORP locomotives . Moreover , from DATE the possibility of any claims being made against the ORG in the future had been excluded , since the liability of the ORG under the representations and warranties expired DATE after the date of signing the agreement .

The applicant insisted that , as the ORG had been aware of the warranties and as it had not used its opportunity to withdraw from the agreement , it had to be concluded that , in substance , ORG had approved the warranties .

In respect of the non - pecuniary damage allegedly caused to the ORG , the applicant noted that ORG reasoning had repeated almost literally the wording of the bill of indictment . The court had failed to consider the evidence submitted by the defence .

DATE . The applicant challenged his conviction on the basis of “ the general sense of justice ” , arguing that such a ground for conviction was incompatible with the principle of the rule of law .

Moreover , he argued that the appeal court had been wrong in finding that , had the shares in the ORG not been sold , the ORG would have retained shares to the value of the sale price . He was of the opinion that this finding was in conflict with economic logic , as the price of the shares in an enterprise had no fixed value and the shares in an insolvent company cost nothing . He concluded that the ORG had sustained no damage and there had been no threat to the preservation of the property of the ORG .

The applicant insisted that he had had a right to interpret the legislation in the same manner as ORG , which had refused to initiate criminal proceedings against him since there had been no breach of law . As ORG had considered the applicant ’s acts lawful before he had signed the protocol concerning the possible claims of ORG , he had legitimately expected that he could rely on the prosecution ’s interpretation according to which his acts , including the conclusion of the protocol , were lawful . He was of the opinion that his conviction had been based on laws that were not clear and understandable , as even the highest officials in ORG , including ORG , had considered his acts lawful .

On DATE ORG ( NORP ) refused the applicant leave to lodge his appeal .

According to Article CARDINAL(CARDINAL ) of the LAW of GPE ( ORG põhiseadus ) ORG decides , on the proposal of the ORG , on the assumption of financial obligations by the ORG .

Section CARDINAL of LAW ( Riigieelarve seadus ) , as in force at the material time , provided for ministries and state agencies to assume financial obligations only if resources had been allocated thereto in the ORG budget or in a budget approved by a minister on the basis thereof . Ministries and state agencies were prohibited from providing security , including furnishing guarantees , unless otherwise prescribed by law .

LAW ( Erastamisseadus ) , as in force at the material time , established that the Agency was managed by its Board , consisting of CARDINAL members , of whom CARDINAL were appointed by the Government and CARDINAL by the President of ORG . PERSON and the Minister of Finance were ex officio members of ORG ( section TIME ) ) .

According to section CARDINAL(CARDINAL ) the exclusive competence of ORG included , inter alia , the appointment and dismissal of ORG , the submission of the privatisation plan to the Government for approval , the establishment of supplementary conditions of privatisation , and the identification of the best bidder and ( if necessary ) the second - best bidder in tenders through preliminary negotiations .

Pursuant to section CARDINAL(CARDINAL ) the ORG may decide to cover debts relating to the assets to be privatised from the privatisation proceeds ( according to LAW ) , if such debts are not objects of sale .

Section CARDINAL(CARDINAL ) stipulates that the ORG , in assessing the final tenders , determines the best bid , taking into account the established supplementary conditions and the purchase price . It may also determine the second - best bid .

Section ORG ) provides that privatisation agreements of purchase and sale are drawn up in unattested written form .

DATE ( PERSON NORP põhimäärus ) stipulates that the ORG represents the ORG in performing its tasks .

Article CARDINAL establishes that the Director General of the ORG manages the everyday activities of the ORG .

Pursuant to Article CARDINAL ) , the Director General has to ensure the performance of the tasks arising from the ORG and the execution of the resolutions of ORG .

According to Article CARDINAL(CARDINAL ) the Director General signs the privatisation agreements of purchase and sale and , if necessary , makes amendments to the agreements that have entered into force , pursuant to the procedure established by ORG .

DATE . Under section CARDINAL(CARDINAL ) of ORG ( Erastamisest laekuva raha kasutamise seadus ) the Agency was entitled to use privatisation proceeds to cover debts relating to privatised assets in specified cases and pursuant to the procedure established by the Government .

The regulation on the Procedure for Covering Debts Relating to Privatised Assets and Expenses Relating to Privatisation of Assets ( Erastatud varaga seotud võlgade ja vara erastamisega seotud kulude katmise ORG ) , promulgated by the Government , provided :

“ Proceeds from the privatisation of assets ... shall be used to cover the debts relating to privatised assets which are specified in points DATE of this procedure . Taking into account the conditions set forth in the points referred to , obligations relating to such assets shall also be deemed debts relating to privatised assets . ”

“ Proceeds from the privatisation of shares shall be used to cover such debts of the company being privatised which have been excluded from the agreement of purchase and sale or which occurred after the conclusion of the agreement of purchase and sale , provided that the debt was not disclosed on the balance sheet of the company ... and that the parties to the agreement were not aware of the debt . ”

LAW ( PERSON ) , a legacy of the NORP era which was reformed in DATE and amended on numerous occasions , was applicable at the material time . It provided :

“ Intentional misuse by an official of his or her official position , if it causes significant damage to the rights or interests of a person , enterprise , agency or organisation protected by law or to national interests , shall be punished by a fine or up to DATE imprisonment . ”

The provisions of LAW ( ORG koodeks ) and the Code of ORG Apellatsiooni ja kassatsiooni kriminaalkohtumenetluse seadustik ) that are pertinent to the examination of witnesses have been summarised in the LOC v. GPE judgment ( no . CARDINAL , § § DATE , DATE ) .

The Criminal Law Chamber of ORG held in its judgment of DATE ( case no . CARDINAL - CARDINAL - CARDINAL - CARDINAL - CARDINAL ) :

“ CARDINAL . ... Significant damage , which is an element of the offence under LAW of the [ Criminal Code ] , can be both pecuniary and non - pecuniary damage caused to the interests of the ORG . ...

ORG of ORG finds that , as criminal law also protects values that can not be measured in money , non - pecuniary damage inevitably has to be accepted as an element of the offence and can not be assessed on the basis of the same criteria as pecuniary damage . The existence or absence of non - pecuniary damage and also the quantitative dimension of non - pecuniary damage ( whether it is ordinary , significant or large - scale non - pecuniary damage ) has to be established by a court in each individual case .

What has to be considered non - pecuniary damage of an ordinary , significant or large extent is an issue of fact . In order to resolve the issue of the extent of non - pecuniary damage in an individual case , it is necessary to consider how dangerous the committed act was in view of the general sense of justice and legal awareness of society and to what extent it has damaged legally protected interests ... . The extent of the damage can also be affected by factors such as the status of the official position ... of the person who had committed the act , the duration of the corrupt activity , whether it was a single instance or systematic , the number of persons affected by the unjustified or unlawful acts or decisions and their location at the local , national or international level , the type of the damage caused – the level of the ... authorities whose reputation was damaged , to what extent their credibility was damaged , whether there was interference in the normal functioning of the state authority and what that interference was , and so on . In considering those questions , it has to be taken into account that sometimes an act and its criminal consequence can be inseparable ( for example , the unlawful activities of a public official constitute at the same time impairment of the reputation of a public authority ) . ”

The Criminal Law Chamber of ORG has found , for example , that significant damage to legally protected rights and interests of other persons and to the national interests had been caused by a police officer who had unlawfully released a person before he had served his sentence ( judgment of DATE , case no . CARDINAL - CARDINAL - CARDINAL - CARDINAL - CARDINAL ) .

In a judgment of DATE ( case no . CARDINAL - CARDINAL - CARDINAL - CARDINAL - CARDINAL ) , ORG of ORG dealt with a case where a first - instance court had convicted the mayor of a town of misuse of official position by endangering the preservation of the town executive ’s assets and by damaging its reputation . On an appeal by the prosecutor , ORG quashed the mayor ’s acquittal by ORG , finding that he had unlawfully invested the town executive ’s money , creating a danger to its preservation and causing damage to the executive ’s reputation . ORG considered irrelevant the facts that the town executive and council had been aware of the mayor ’s activities and that in the town executive ’s view they had not been discredited . It noted that the establishment and assessment of the elements of the offence was the task of the court and not of the local government bodies connected with the matter .

On DATE the Criminal Code was replaced by the new GPE Code ( Karistusseadustik ) , which provided :

“ Intentional misuse by an official of his or her official position with the intention to cause significant damage or if thereby significant damage is caused to the legally protected rights or interests of another person or to public interests , shall be punished by a fine or up to DATE imprisonment . ”

By a legislative amendment concerning economic offences that entered into force on DATE , LAW was repealed . In the explanatory memorandum prepared by ORG , it was stated that the purpose of repealing that LAW was to limit the responsibility of an official for the misuse of his or her official position to cases where significant pecuniary damage had been caused to another person ( a new offence of breach of confidence was proposed to that effect ) . It was stated in the memorandum that broad and vague definitions of the necessary elements of offences were in conflict with the general principle of legal certainty and the nulla poena sine lege principle laid down in LAW ( Articles CARDINAL § CARDINAL and DATE , respectively ) . It was reiterated that it had to be sufficiently clear to a person what kind of ( lawful ) conduct was expected from him or her and which circumstances determined his or her liability . Reference was also made to the interpretation of LAW by ORG , according to which the necessary elements of a criminal offence had to be clearly defined in law ( see PERSON v. GPE ( no . CARDINAL ) , no . CARDINAL , § CARDINAL , ORG CARDINALI ) .

Another reason provided in the explanatory memorandum for repealing LAW was that an assessment of the significance of non - pecuniary damage caused by misuse of official position made by a court retroactively constituted a discretionary decision . Accordingly , it could be difficult for an official to predict at the time of commission of the act whether the non - pecuniary damage caused by him or her could , based on the general principles of law , be regarded as “ significant ” for the purposes of the definition of misuse of official position . Hence , at the time of committing the act it might not be possible to predict with sufficient certainty whether the particular misuse of official position resulting in non - pecuniary damage was punishable as a criminal offence or not . Thus , according to the memorandum , it could be concluded that in the case of a vague definition of an offence , there was a risk that damage might be deemed to be caused merely on the ground that a breach of regulations had been committed , and this , in principle , made it possible to bring charges against an official for any kind of misuse of office . Also assessment of the extent of damage in individual cases was considered to cause problems .

In a decision of DATE ( case no . CARDINAL - CARDINAL - CARDINAL - CARDINAL - CARDINAL ) , ORG of ORG raised several important issues in connection with the application of the law in cases of misuse of official position under LAW . The criminal case concerned charges against a person who held an official position in a public limited company . ORG noted that in its earlier case - law it had explicitly accepted that non - pecuniary damage could be caused to legal persons in public law , first and foremost to the ORG ( including a specific government agency ) and to local government bodies . However , according to the case - law of ORG of ORG , a legal person could not claim compensation for non - pecuniary damage . Accordingly , ORG referred the case to ORG to obtain an authoritative ruling .

ORG in the above case also raised the issue of whether , if a commercial company were to be able to claim compensation for non - pecuniary damage , LAW was partially contrary to LAW . It noted that LAW and CARDINAL § CARDINAL of the LAW embodied the principle that only the law can define a crime and prescribe a penalty ( nullum crimen , nulla poena sine lege certa ) . It referred to a judgment of ORG in which the ORG had found that an offence had to be clearly defined in law and that this requirement was satisfied where the individual could know from the wording of the relevant provision and , if need be , with the assistance of the ORG interpretation of it , what acts and omissions would make him criminally liable ( see Veeber ( no . CARDINAL ) , cited above , § CARDINAL ) . ORG noted that criminal liability for misuse of an official position under LAW was dependent on whether the damage caused was “ significant ” . While there existed criteria to assess whether the pecuniary damage was “ significant ” , there were no objective criteria to determine the extent of non - pecuniary damage . The latter was expressed in the opinion of the court , for the purposes of which the court would consider the general principles of law , the level of society ’s general welfare and case - law .

Accordingly , ORG observed , a court ’s retrospective assessment of the significance of non - pecuniary damage caused by misuse of official position was a discretionary decision . Therefore , it could be difficult for an official to predict at the time of the commission of an act whether on the basis of the general principles of law the non - pecuniary damage caused by him or her would amount to “ significant ” damage within the meaning of the offence of misuse of official position . Thus , at least in cases not covered by earlier case - law , it was not necessarily predictable with sufficient certainty whether a particular act of misuse of official position causing non - pecuniary damage would be punishable as a criminal offence .

However , by a judgment of DATE , the plenary ORG acquitted the defendant in the above case on the grounds that the act committed by him had not corresponded to the elements of the offence under LAW . Accordingly , ORG was procedurally prevented from ruling on the constitutionality of LAW .

In a judgment of CARDINAL DATE ( case no . CARDINAL - CARDINAL - CARDINAL - CARDINAL - CARDINAL ) ORG of ORG dealt with a charge concerning a violation of the requirements of public procurement under LAW . Significant damage caused to the rights or interests of another person or to public interests was a constituent element of this offence , as in LAW . The court held :

“ CARDINAL . ... [ I]n order to guarantee [ the defendant ] the right to defence , all the factual circumstances serving as a basis for his or her criminal liability must be presented in the text of the bill of indictment in a sufficiently clear and precise manner . ...

The conclusion made in the bill of indictment that [ the defendant ] “ [ had ] damaged fair competition as a basis of the market economy , and thus had damaged other ORG rights and interests ” , did not make it clear who were the “ other persons ” referred to whose rights and interests [ the defendant ] had damaged , what change was caused in the situation of the legally protected interests of these persons by the alleged damage and what was the extent of the damage . Charges of causing significant damage , which do not specify the injured person or the facts on the basis of which one could render a legal opinion on the nature and extent of the alleged damage , are not specific enough and the courts are not able to establish the existence of significant damage as a necessary element of the criminal offence on the basis of such charges .

NORP ... [ A]ccording to the bill of indictment [ the defendant ] had breached the requirements applicable to public procurement proceedings and had thereby caused significant damage by casting doubt on the impartiality and integrity of the highest official of an executive body . ...

It does not appear from the bill of indictment ... in whose eyes and to what extent the trust in the impartiality and integrity of the highest official of the executive body had been undermined as a result of the act committed by the defendant and what were the circumstances that had evidenced the undermining of the trust . In other words , the charges did not point to any facts which , if established , would have allowed the courts to conclude that [ the defendant ’s ] act had actually undermined the credibility of state officials or to render a legal opinion as to whether such a consequence could be regarded as damage caused to a person and whether this damage was “ significant ” within the meaning of LAW of [ LAW ] . Hence , the charges of causation of significant damage brought against [ the defendant ] were not specific enough in the part concerning the alleged casting of doubt on the integrity and credibility of the highest state officials either .

NORP ... [ Contrary to the requirements of the criminal procedure law ] , the courts were not guided – in establishing the consequence as a necessary element of the offence – by evidence which would have proved that actual changes in the reputation of state officials had occurred in the real world and that these changes had been caused by the act [ of the defendant ] but , instead , they were merely guided by the legal assessment of the nature of the violation committed by [ the defendant ] . In other words , ORG and ORG eliminated the boundary between the act and the consequence , considering that the breach of a law was automatically also a consequence .

... [ I]n criminal proceedings , none of the facts required to be proved , including consequence as a necessary element of an offence , can be established on the basis of a legal opinion . This is because a legal opinion says nothing about the changes that actually occurred or did not occur in the real world as a result of the act . A normative understanding according to which an unlawful act committed by the accused is of such a kind that it would undermine the trust of an “ average person ” in the integrity and impartiality of state officials can not justify the conclusion that , in a specific case , there actually is a sufficient number of persons who are aware of this unlawful act and whose trust in the integrity and credibility of state officials is undermined as a result of this particular act .

In connection with the charge against [ the defendant ] that he “ created a situation where there was a real danger to the purposeful and economical use of the funds from the state budget in the amount of CARDINAL kroons ” , ORG wishes to make it clear that creation of a danger and causing damage are CARDINAL different types of consequences that constitute necessary elements of an offence . Creation of a danger ( emergence of a dangerous situation ) can be regarded as an increase in the possibility of actual damage being caused , and it comprises a necessary element of an offence only in the case of a specific danger - creating delict [ ohudelikt ] , that is if the definition of the offence mentions the creation of a danger as a consequence being CARDINAL of the necessary elements of the offence ... . If the definition of an offence mentions the causation of some kind of damage as a consequence being CARDINAL of the necessary elements of the offence ... it is a delict consisting in the causation of material damage [ materiaalne kahjustusdelikt ] . The necessary elements of this type of offence are present only if actual damage DATE and not merely an increase in the possibility of damage being caused DATE has been caused as a result of the act . ... ”


Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Stanislav Shevchuk;Zdravka Kalaydjieva

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in ORG , GPE . He was represented before the ORG by Mr A. Schwierzy , a lawyer practising in GPE , GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON , of ORG .

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

In DATE the applicant worked in the town of GPE in GPE . In DATE the applicant moved to the town of PERSON in GPE , where he worked until his departure to GPE in DATE . In DATE the applicant received a permanent residence permit in GPE .

In DATE , according to the applicant , he reached the age of retirement , as he had worked in hazardous conditions and was , therefore , entitled to an early pension .

In a letter of DATE ORG of GPE informed the applicant that , in accordance with the PERSON of GPE on Pensions , pensions should not be granted to citizens who had left for permanent residence abroad .

On DATE the applicant again requested ORG of GPE to grant him a pension but received a refusal since he had not submitted a NORP passport .

At DATE a certain NORP lodged a complaint before ORG on behalf of the applicant challenging the refusal of ORG to pay him pension . On DATE the court found that the ORG 's refusal was based on the legal provisions in force and that the applicant was not entitled to pension payments since he had not been residing in GPE since DATE .

Section CARDINAL of the Law of GPE on Pensions provides that an old - age pension is granted to men from DATE and with work experience of DATE .

Section CARDINAL of the Law of GPE on Pensions provides for situations in which a man can receive an early retirement pension at DATE .

Other relevant domestic law is summarised in the PERSON v. GPE decision ( no . CARDINAL/CARDINAL , DATE ) .


No violation of P7-4;No violation of Art. 6-1

The applicant was born in DATE and lives in GPE .

NORP In DATE the applicant , a former naval officer , joined an environmental project conducted by ORG , a NORP non - governmental organisation , to work on a report entitled “ ORG – Sources of Radioactive Contamination ” ( “ the report ” ) .

On DATE ORG ’s GPE office was searched by ORG ( ORG РФ – “ the ORG ” ) . The ORG seized the draft report , interrogated the applicant and instituted criminal proceedings on suspicion of treason , since the draft report allegedly contained information , classified as officially secret , concerning accidents on NORP nuclear submarines .

On DATE the applicant ’s trial on a charge of treason through espionage and a charge of aggravated disclosure of an official secret began before GPE . After DATE of hearings , the case was remitted for further investigation on DATE . The court considered that the indictment was vague , which impaired the applicant ’s defence and prevented the court from carrying out an examination on the merits . It also found that the investigation file left open the question whether the report contained any official secrets as such , and that it did not contain a “ proper and complete ” expert evaluation of possible public sources of the information in question or of the estimated damage . The court ordered the prosecution to conduct an additional expert examination into the possibility that the applicant had obtained the disputed information from public sources and to take other steps to complete the investigation .

On DATE the prosecution appealed against this decision , claiming that the case was clear enough for determination by a court and that there was no need for further investigation .

On DATE the order for further investigation was upheld by ORG of GPE ( “ the ORG ” ) .

On DATE GPE resumed the applicant ’s trial on the same charges .

On DATE GPE acquitted the applicant on all the charges , having found that the applicant had been prosecuted on the basis of secret and retroactive decrees .

The prosecution appealed .

On DATE ORG upheld the acquittal . The court found that the charges were based on secret and retroactive decrees which were incompatible with the LAW . The acquittal thus became final .

On CARDINAL DATE the Procurator General filed a request with the Presidium of ORG to review the case in supervisory proceedings ( протест на приговор , вступивший в законную силу ) . He challenged the judgment on the grounds of wrongful application of the law governing official secrets , the vagueness of the indictment DATE which had led to procedural prejudice against the applicant – and other defects in the criminal investigation , in particular the lack of an expert report as to whether the disputed information had originated from public sources . He called for a reassessment of the applicable law and of the facts and evidence in the case file , and for the case ’s remittal for fresh investigation .

On DATE the Presidium of ORG dismissed the Procurator General ’s request and upheld the acquittal . While it acknowledged that the investigation had been tainted with flaws and shortcomings , it found that the prosecution could not rely on them in calling for a remittal , as it had been entirely within the prosecution ’s control to redress them at an earlier stage in the proceedings . Moreover , the ORG pointed out that the investigation authority had earlier been required to remedy exactly the same defects as those relied on in the request to quash the acquittal . It observed that on DATE the court had expressly instructed the investigating authority , inter alia , to conduct a study of information in the public domain in order to ascertain whether the applicant could have obtained the disputed data from public sources .

On DATE ORG of GPE examined the applicant ’s challenge to the laws which allowed supervisory review of a final acquittal .

NORP In its ruling of the same date , ORG declared incompatible with the LAW the legislative provisions permitting the re - examination and quashing of an acquittal on the grounds of a prejudicial or incomplete investigation or court hearing or on the ground of inaccurate assessment of the facts of the case , save in cases where new evidence had emerged or there had been a fundamental defect in the previous proceedings .

The Constitutional Court ’s judgment stated , inter alia :

“ ... LAW provides that the right not to be tried or punished twice does not prevent the reopening of the case in accordance with the law and criminal procedure of the ORG concerned , if there is evidence of new or newly discovered facts , or if there has been a fundamental defect in the previous proceedings , which could affect the outcome of the case .

It follows ... that , subject to the above requirements , the national legislation may provide for a system by which a case may be reopened and a final judgment be quashed , and may specify where , depending on the case , a procedure for reopening on the grounds of new or newly discovered evidence or a supervisory review should apply .

Any exemption from the general prohibition on resuming proceedings to the detriment of the acquitted or convicted person may be justified only in exceptional circumstances , where a failure to rectify a miscarriage of justice would undermine the very essence of justice and the purpose of a verdict as a judicial act and would upset the required balance between the constitutionally protected values involved , including the rights and legitimate interests of convicted persons and those of the victims of crime . In the absence of any possibility of reversing a final judgment resulting from proceedings tainted by a fundamental defect that was crucial for the outcome of the case , an erroneous judgment of this type would continue to have effect notwithstanding the principle of general fairness ... and the principle of judicial protection of fundamental rights and freedoms .

Under LAW and the LAW ] any possibility provided for at national level of quashing a final judgment and reviewing a criminal case must be subject to strict conditions and criteria clearly defining the grounds for such review , given that the judgment concerned is already binding and determinative of the individual ’s guilt and sentence .

However , the grounds for review of final judgments provided for in LAW [ of DATE ] go beyond these limits . When establishing a procedure for the review of final convictions and , especially , acquittals ... definite grounds should have been formulated to ensure that such a procedure would be implemented with sufficient distinctness , precision and clarity to exclude its arbitrary application by the courts . In failing to do so , [ the legislature ] misapplied the criteria which derive from [ the LAW ] and LAW quashing of final judgments in criminal cases ...

Furthermore , [ the power ] of a supervisory instance to remit a case for fresh investigation where it concludes , through its own assessment of evidence , that the previous investigation has been prejudicial or incomplete , is incompatible with the constitutional principles of criminal procedure and with ORG jurisprudence , in that it gives the prosecution an unfair advantage by providing it with additional opportunities to establish guilt even after the relevant judgment has become operative . It follows that a court of supervisory instance can not quash a final acquittal only on the ground of its being unfounded ... Accordingly , the prosecutor is not entitled to request the supervisory review of such a judgment on the ground that it is unfounded ... ”

Section VI , LAW , of DATE кодекс РСФСР ) in force at the material time allowed certain officials to challenge a judgment which had become effective and to have the case reviewed on points of law and procedure . The supervisory review procedure ( Articles CARDINAL - CARDINAL of the Code ) is distinct from proceedings in which a case is reviewed in the light of newly established facts ( Articles CARDINAL - CARDINAL ) . However , similar rules apply to both procedures ( Article CARDINAL ) .

Under the terms of LAW , a judgment takes effect and is enforceable from the date on which the appeal court renders its decision or , if no appeal has been lodged , once the time - limit for appeal has expired .

“ The grounds for quashing or varying a judgment [ on supervisory review ] are the same as [ those for setting aside judgments ( which have not taken effect ) on appeal ] ... ”

“ The grounds for quashing or varying a judgment on appeal are as follows :

( i ) prejudicial or incomplete investigation or pre - trial or court examination ;

( ii ) inconsistency between the facts of the case and the conclusions reached by the court ;

( iii ) a grave violation of procedural law ;

( iv ) misapplication of [ substantive ] law ;

( v ) discrepancy between the sentence and the seriousness of the offence or the convicted person ’s personality . ”

“ Judgments , decisions and rulings which have become effective may be set aside on account of newly discovered circumstances .

The grounds for reopening a criminal case are as follows :

( i ) with regard to a judgment which has become effective , the establishment of false witness testimony or false expert opinion ; forgery of evidence , investigation records , court records or other documents ; or an indisputably erroneous translation which has entailed the pronouncement of an unfounded or unlawful judgment ;

( ii ) with regard to a judgment which has become effective , the establishment of criminal abuse of their powers by judges when examining the case ;

( iii ) with regard to a judgment which has become effective , the establishment of criminal abuse of their powers by investigation officers dealing with the case , where this has entailed the pronouncement of an unfounded or unlawful judgment or a decision to terminate the prosecution ;

( iv ) other circumstances , unknown to the court at the time when the case was examined , which , alone or combined with other previously established facts , prove a convicted person ’s innocence or the commission by him or her of an offence which is more or less serious than that of which he or she was convicted , or which prove the guilt of a person who was acquitted or whose prosecution was terminated . ”

Article CARDINAL of the Code of Criminal Procedure provided that the power to lodge a request for a supervisory review could be exercised by the Procurator General , the President of ORG of GPE or their respective deputies in relation to any judgment other than those of the Presidium of ORG , and by the presidents of the regional courts in respect of any judgment of a regional or subordinate court . A party to criminal or civil proceedings could solicit the intervention of those officials for a review .

Article CARDINAL of LAW set a limitation period of DATE during which a request calling for the supervisory review of an acquittal could be brought by an authorised official . The period ran from the date on which the acquittal took effect .

Under Articles CARDINAL , CARDINAL and CARDINAL of the Code of Criminal Procedure , a request for supervisory review was to be considered by the judicial board ( the ORG ) of the competent court . The court could examine the case on the merits and was not bound by the scope and grounds of the request for supervisory review .

The ORG could dismiss or grant the request . If it dismissed the request , the earlier judgment remained in force . If it granted the request , the ORG could decide to quash the judgment and terminate the criminal proceedings , to remit the case for a new investigation , to order a fresh court examination at any instance , to uphold a first - instance judgment reversed on appeal , or to vary or uphold any of the earlier judgments .

Article QUANTITY provided that the ORG could , in the same proceedings , reduce a sentence or amend the legal classification of a conviction or sentence to the defendant ’s advantage . If it found a sentence or legal classification to be too lenient , it was obliged to remit the case for a new examination .

On DATE a new Code of Criminal Procedure came into force . Under Article CARDINAL , the application of supervisory review is limited to those cases where it does not involve changes that would be detrimental to the convicted person . Acquittals and decisions to discontinue the proceedings may not be the subject of a supervisory review .

On DATE , at the CARDINALth meeting of ORG , ORG Recommendation No . R ( DATE ) CARDINAL on the re - examination or reopening of certain cases at domestic level following judgments of ORG . The recommendation encouraged the Contracting Parties to examine their national legal systems with a view to ensuring that there existed adequate possibilities to re - examine the case , including the reopening of proceedings , in instances where the ORG had found a violation of the LAW .


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

She was represented before the ORG by Mr PERSON , a lawyer practising in GPE .

The respondent Government were represented by their successive Agents , respectively PERSON and Mr PERSON , and by their successive co - Agents , respectively Mr PERSON and Mr PERSON .

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

The applicant is the owner of CARDINAL flats in GPE , which she had let respectively to GPE , GPE and GPE , and ORG

In a writ served on the tenant on CARDINAL DATE , the applicant informed the tenant of her intention to terminate the lease on expiry of the term on DATE and summoned her to appear before the Naples Magistrate .

By a decision of DATE , which was made enforceable on CARDINAL DATE , ORG upheld the validity of the notice to quit and ordered that the premises be vacated by DATE .

On DATE , the applicant served notice on the tenant requiring her to vacate the premises .

On DATE , she informed the tenant that the order for possession would be enforced by a bailiff on CARDINAL DATE .

DATE and DATE , the bailiff made CARDINAL attempts to recover possession . Each attempt proved unsuccessful , as the applicant was not entitled to police assistance in enforcing the order for possession .

In the meanwhile , on DATE , the applicant made a statutory declaration that she urgently required the premises as accommodation for her daughter as her residence .

On DATE , the applicant recovered possession of the flat .

In a writ served on the tenant on DATE , the applicant informed the tenants of her intention to terminate the lease and summoned them to appear before the Naples Magistrate .

By a decision of CARDINAL DATE , which was made enforceable on DATE , ORG upheld the validity of the notice to quit and ordered that the premises be vacated by CARDINAL DATE .

On DATE , the applicant served notice on the tenants requiring them to vacate the premises .

On DATE , she informed the tenants that the order for possession would be enforced by a bailiff on CARDINAL DATE .

In the meanwhile , on DATE , the applicant made a statutory declaration that she urgently required the premises as accommodation for her daughter as her office .

In a writ served on the tenant on DATE , the applicant informed the tenant of her intention to terminate the lease and summoned him to appear before the Naples Magistrate .

The tenant told the applicant that he would not leave the LOC .

By a decision of CARDINAL DATE , which was made enforceable on DATE , the Naples Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by CARDINAL DATE .

On DATE , the applicant served notice on the tenant requiring him to vacate the premises .

In the meanwhile , on DATE , the applicant made a statutory declaration that she urgently required the LOC as accommodation for herself .

On an unspecified date , the applicant applied to ORG , claiming compensation under LAW for the length of the CARDINAL eviction proceedings . She sought redress for non - pecuniary and pecuniary damage .

In CARDINAL decisions of DATE , filed with the registry on DATE , ORG rejected the claims on the ground that the delay in the eviction was due either to legislative choices or to the lack of police assistance and therefore the administration of justice could not be held responsible .

The applicant did not appeal to ORG . The decisions became final , at the latest , on DATE .

The relevant domestic law and practice is described in the decision ORG c. Italie ( no MONEY , of DATE ) .


Violation of Art. 6-1 as regards independence and impartiality;Not necessary to examine the complaints under Arts. 6-1 and 6-2 regarding fairness;Partly inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

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

On DATE PERSON and her son , GPE , filed a complaint with the gendarmes and submitted that they had received a threatening letter from the ORG . The letter which was written on purple paper and sealed with the symbol of the ORG read : “ You have to change your statement concerning our friend or both of you will die . ” PERSON and GPE stated that they had been summoned to give evidence in connection with an ongoing investigation against certain ORG members . They further maintained that they knew the person who had sent the letter .

Accordingly , the gendarme officers initiated an investigation , which led to the arrest of the applicant .

On DATE the applicant was arrested on suspicion of sending threatening letters on behalf of the ORG . Samples of the applicant 's handwriting were taken and sent to the laboratory for examination .

ORG compared the handwriting of the applicant to the handwriting on the letter . It concluded that the characteristics of the applicant 's handwriting had similarities with the handwriting on the letter .

On DATE the applicant gave a statement to the gendarmes and denied all the accusations against him . He submitted that he had no connections with the ORG and that he had not written the letter .

DATE , he was questioned by the ORG public prosecutor . In his statement to the public prosecutor , he mainly repeated his police statement and denied the charges against him .

The applicant was then taken before the Adana Magistrate 's Court in Criminal Matters on DATE . He pleaded not guilty before the judge . He denied the allegation that he had carried out activities on behalf of the ORG . He further asserted that his signature which had been used for handwriting analysis had not been taken in accordance with the domestic legislation . After examining the expert report and the applicant 's submissions , the court concluded that the sample of the applicant 's handwriting which had been used for comparison had not been taken in accordance with the law . It accordingly concluded that there was not sufficient evidence to establish that the applicant had committed the alleged offence and ordered his release .

NORP In an indictment dated DATE , the public prosecutor attached to ORG initiated criminal proceedings against the applicant . He charged him with being a member of an armed gang under LAW § CARDINAL of LAW . He based himself on the report of ORG which had concluded that the applicant 's handwriting had similarities with the handwriting on the threatening letter sent to GPE and GPE

Before the court , the applicant contested the charges against him . He stated that he had no connection with the ORG and that the allegations were baseless .

On DATE the court ordered ORG to carry out a handwriting examination .

On DATE ORG sent a letter to the court and requested further specimens to make an accurate comparison . In this respect , they required the applicant to write down the text of the letter in small letters , and the text on the envelope in capital letters . ORG further requested the applicant to submit specimens of his handwriting , which he had written in the past .

After an examination of the above - mentioned samples , the ORG delivered CARDINAL reports , dated DATE and DATE . It was established that the characteristics of the applicant 's handwriting had similarities with the handwriting on the letter and that the letter was written by the applicant .

ORG held CARDINAL hearings , the last on DATE .

On DATE the case was transferred to ORG . Between this date and DATE the court held CARDINAL hearings .

In his final observations on the merits , the public prosecutor changed the accusation against the applicant and accused him of aiding an armed gang under LAW .

NORP In his final defence submissions , the applicant denied the allegations under LAW and stated that he had not written the letter and that he had no connection with the ORG . He further challenged the findings of the experts ' reports .

On DATE ORG , which was composed of CARDINAL judges including a military judge , found the applicant guilty as charged and sentenced him to DATE and DATE imprisonment pursuant to LAW . The applicant was further debarred from public service for DATE . In its judgment , the court found it established that the applicant had sent a threatening letter on behalf of the ORG to GPE and GPE who were to give statements against certain ORG members in connection with another criminal case . The court based itself on expert reports which had concluded that the letter was written by the applicant .

After holding a hearing , on DATE ORG dismissed the applicant 's appeal .

A full description of the domestic law may be found in PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .

Article CARDINAL § CARDINAL ( f ) of LAW , as amended by LAW CARDINAL of DATE which entered into force on DATE , regulates the cases where a request for re - trial could be filed following a criminal conviction .

Accordingly :

“ In cases where ORG finds it established that the criminal conviction constituted a breach of ORG and its Additional Protocols ( ... ) In this case , the re - trial can be requested within DATE from the date on which the judgment of ORG becomes final . ”


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

The applicant was a citizen of GPE ( “ GPE ” ) and is an engineer by profession . He inter alia contributed to the optional supplementary pension system and an additional pension scheme open to engineers ( see “ Relevant domestic law ” below ) .

On DATE ORG for Salaried Employees ( GPE für DATE hereinafter referred to as “ ORG ” ) provided the applicant with information as to his contribution periods and the basis for the calculation of his pension ( NORP und PERSON ) .

On DATE he lodged an objection . On DATE ORG issued a new decision taking into account additional contribution periods , thereby partially quashing the initial decision . The applicant then supplemented his pending objection , which was finally rejected on DATE .

Subsequently , he brought an action in ORG contesting that his contributions to the GPE optional supplementary pension scheme were only taken into account up to the social security contribution ceiling for GPE ( ORG ) according to the provisions of ORG . CARDINAL . However , the applicant did not contest the determination of his contribution periods .

On DATE ORG rejected his action .

On DATE ORG rejected the applicant ’s appeal holding that the application of the social security contribution ceiling could only be the subject of proceedings dealing with the actual amount of pension whereas the present proceedings only concerned the establishment of the periods during which contributions had been made . The court refused the applicant leave to appeal on points of law .

On DATE ORG rejected the applicant ’s complaint .

On DATE ORG refused to admit the applicant ’s complaint .

On DATE ORG determined the amount of the applicant ’s pension . On DATE the applicant retired . On DATE ORG rejected the applicant ’s objection . He then brought an action in ORG and the proceedings appear to be still pending .

In the GPE there were a compulsory general pension scheme ( GPE ) , an optional supplementary pension scheme ( PERSON ) and furthermore additional pension schemes for certain professions or groups ( Zusatz- PERSON ) , which led to a considerable increase of the amount of pension .

For a more detailed overview of the GPE pension system , its transfer to GPE ( “ FRG ” ) and the calculation of pensions see the ORG ’s recent decision in the case of PERSON and Others ( see PERSON and Others v. GPE ( dec . ) , no . PERSON , DATE ) .

Section CARDINAL of FAC provides :

“ ( CARDINAL ) Where no decision has been rendered regarding an application for the performance of an administrative act within a reasonable time and without sufficient grounds , an action in court shall be admissible DATE after an application for the performance of the administrative act has been submitted . ( ... )

( CARDINAL ) The same applies if no decision upon an objection was rendered providing that a DATE time - limit shall apply as a reasonable time limit . ”