CASE OF A.P., M.P. AND T.P. v. SWITZERLAND

Violation of Art. 6-2;Not necessary to examine Art. 6-1;Not necessary to examine Art. 6-3;Costs and expenses award - Convention proceedings

The applicants are all NORP nationals who live in GPE . They are the widow and sons of the late Mr P. , who died on DATE .

Mr P. had been the sole shareholder of a construction company , and the applicants were Mr P. ’s only heirs . The company ’s business was carried on by Mr P. ’s sons .

An inventory of Mr P. ’s estate was drawn up by the municipal authorities on CARDINAL DATE . A copy of that document in the ORG ’s file is dated CARDINAL DATE .

The DATE period within which the applicants could have renounced the inheritance ( Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of the Swiss Civil Code – see paragraph CARDINAL below ) apparently expired on CARDINAL DATE .

DATE the tax authorities examined the books kept by the company . Their inspection showed that over a period of DATE Mr P. had appropriated certain back payments due to the company and failed to declare them as income , thus evading both cantonal and federal taxes .

NORP The cantonal and federal tax authorities each initiated proceedings against the applicants for recovery of the unpaid taxes and at the same time imposed fines for tax evasion .

It appears that the applicants cooperated with the tax authorities by providing them with the information needed to calculate the correct assessments . However , they resisted the imposition of the fines and appealed to the appropriate tribunals , maintaining that they were innocent of the tax offence committed by Mr P.

NORP The cantonal proceedings ended on CARDINAL DATE with a judgment of ORG . ORG considered that it was a principle of criminal law in a ORG based on the rule of law that the innocent should not be punished , and DATE departing from its earlier case - law – held that the imposition of fines on the heirs for tax evasion by the deceased was accordingly illegal .

On DATE ORG of ORG , deciding on an objection lodged by the applicants , issued an assessment of the direct federal tax unlawfully withheld by PERSON P. over CARDINAL/CARDINAL and CARDINAL/CARDINAL and imposed fines on the applicants . The fines came to MONEY ( CHF ) for MONEY CARDINAL for CARDINAL . Its reasoning included the following :

“ By incorrectly declaring his income , the taxpayer withheld taxes from the ORG and thus became guilty of tax evasion . Pursuant to ORG CARDINAL § CARDINAL and CARDINAL § CARDINAL , respectively , of the Ordinance on Direct Federal Tax his heirs must therefore pay a fine of CARDINAL times the amount in addition to the tax withheld . For the tax period PERSON , when CARDINAL was evaded , the fine amounts to CARDINAL times the amount , and for the tax period CARDINAL , when CARDINAL was evaded , it amounts to CARDINAL times the amount of the taxes withheld . However , as it can be observed that the heirs have done everything possible to clarify the incorrect declaration of taxes , the fine is reduced to CARDINAL . ”

ORG declined to follow the precedent set by the judgment of ORG on DATE ( see paragraph CARDINAL above ) on the ground that it could not deviate from clear provisions of federal law as long as the unconstitutional nature of those provisions had not been clearly established .

The applicants lodged an appeal against this decision with ORG of the GPE of GPE , relying inter alia on LAW .

ORG gave its decision on DATE .

The assessment for DATE was quashed on the ground that it had not been lawfully communicated to the applicants within the DATE limitation period ( LAW .

The assessment for DATE was upheld . In this context , ORG held that LAW could be relied on directly only in so far as it provided guarantees additional to those under LAW which it did not .

In an obiter dictum ORG made a distinction between the presumption of innocence and the principle that only the guilty should be punished . The heirs’ liability to pay fines incurred by the taxpayer , which did not offend against the latter principle — as construed in domestic law and applied to the deceased — did not necessarily offend against the former presumption either .

The applicants lodged an administrative - law appeal with ORG on DATE .

In addition to reiterating their complaints concerning the fines , they argued that they were entitled , under LAW CARDINAL of the ORG , to a public hearing and to the rights of the defence .

The Zurich ORG and the federal tax authorities , which had been invited to submit written comments pursuant to section CARDINAL of LAW ( see paragraph CARDINAL below ) , expressed the opinion that the appeal should be dismissed . ORG of ORG , which had also been invited to submit comments , declined to do so .

ORG dismissed the appeal without a hearing ( section CARDINAL of LAW ( see paragraph CARDINAL below ) in a judgment delivered on CARDINAL DATE and served on the applicants on DATE . Its reasoning included the following :

“ Unlike back tax , the fine for tax evasion ( save in so far as it may comprise interest intended to compensate for delay ) pursuant to LAW character ... Moreover , the definition of tax evasion requires that the taxpayer should be guilty , whether by commission or by omission , of a breach of duty resulting in his being underassessed for tax .

However , according to the principle that heirs inherit tax liabilities ... the latter are liable , under LAW § CARDINAL of the Ordinance on Direct Federal Tax , up to the amount of their share in the estate , and irrespective of any personal guilt , for the deceased person ’s evaded taxes and the fines . The provision in question of the Ordinance on Direct Federal Tax thus expressly contemplates that the heirs enter into the position of the deceased even in respect of the penal tax without being personally guilty . It follows that as regards the liability of heirs , the applicants can not derive any argument PERSON from the presumption of innocence enshrined in LAW , which only applies to persons charged with a criminal offence ... Nor can the general principles of the criminal law prayed in aid by the applicants avail them in the circumstances . ”

ORG did not rule on the ORG claims under LAW QUANTITY CARDINAL and CARDINAL .

At the relevant time , tax evasion was punishable by a fine of CARDINAL times the amount evaded , the fine being payable in addition to the amount due ( Article CARDINAL § CARDINAL of the Ordinance on Direct Federal Tax ) .

Article CARDINAL § CARDINAL provided , inter alia :

“ If the evasion is discovered only after the death of the taxpayer , proceedings shall be brought against his heirs . Irrespective of personal guilt , the heirs shall be jointly liable for the deceased person ’s evaded taxes and the fine incurred by him up to an amount not exceeding their share in the estate . ”

According to Article CARDINAL § CARDINAL of the Swiss Civil Code , an inheritance passes upon the death of the deceased .

The relevant parts of LAW of the Swiss Civil Code provide :

“ CARDINAL . The heirs shall automatically acquire the entire estate as soon as it passes .

Subject to the statutory exceptions , all claims and actions , property rights and other rights in rem and possessions of the deceased shall automatically pass to them , and they shall become personally liable for the deceased ’s debts . ”

Under LAW § CARDINAL of the Swiss Civil Code , the heirs have the right to renounce the inheritance which has devolved to them . The time - limit for so doing is DATE ( Article CARDINAL § CARDINAL ) .

It was open to the taxpayer to lodge an objection against an assessment of direct federal tax to the authority which had made it ( Article CARDINAL of the Ordinance on Direct Federal Tax ) .

An appeal against the decision given in the objection proceedings lay to ORG ( Article CARDINAL ) . ORG of the canton and the federal tax authorities could also bring such an appeal ( Article CARDINAL ) .

An administrative - law appeal lies to ORG against the decision of ORG ( section CARDINAL ( e ) of LAW ) . Such an appeal may be lodged by both the tax debtor and the federal tax authorities ( LAW of the Ordinance on Direct Federal Tax ) .

If ORG orders an exchange of written pleadings , it asks the authority which gave the decision to forward the case file ( section CARDINAL ( CARDINAL ) of LAW ) , at the same time inviting it to submit its comments in writing ( section CARDINAL ( CARDINAL ) ) .

The cantonal authority which gave the last decision at cantonal level is also invited to comment ( section CARDINAL ( CARDINAL ) ) , as is the federal authority which would itself have been entitled to lodge an appeal ( section CARDINAL ( CARDINAL ) ) .

At the material time , section CARDINAL ( CARDINAL ) of ORG made it possible for a CARDINAL - judge ORG to dismiss an administrative - law appeal as manifestly ill - founded without a hearing , provided that its decision was unanimous .

Under Article CARDINAL § CARDINAL of LAW , the general provisions of the LAW apply to offences created by other federal laws unless the latter provide otherwise .

Article QUANTITY CARDINAL of the Criminal Code provides that a fine lapses if the convicted person dies .

However , pursuant to LAW , LAW see paragraph DATE above ) derogates from this principle as a lex specialis .

Section CARDINAL ( CARDINAL ) of ORG of DATE , in force since DATE , provides for the liability of heirs , inter alia , for any fines determined with legal force . According to section CARDINAL ( CARDINAL ) , the heirs shall not be so liable if the tax - evasion proceedings are concluded after the death of the taxpayer , provided that the heirs themselves are guiltless and do what they can to enable the tax authorities to make a correct assessment .


The applicant , Mr PERSON , is a NORP national who was born in DATE and has been placed in a psychiatric clinic ( PERSON ) in Straubing .

The applicant has been convicted CARDINAL times in DATE , inter alia of fraud in CARDINAL cases ( judgment of the Bad Kissingen ORG of CARDINAL DATE ) and in CARDINAL cases ( judgment of ORG of DATE ) . On the latter occasion , he had been sentenced to CARDINAL years’ imprisonment .

On DATE , ORG convicted the applicant of fraud in CARDINAL cases and sentenced him to DATE imprisonment . ORG stressed that the damage which the applicant had caused with his offences amounted to CARDINAL DEM . After having considered an expert opinion by a psychiatrist , ORG ordered the applicant ’s placement in a psychiatric hospital because of his diminished culpability ( eingeschränkte GPE ) . According to the expert opinion , the applicant suffered from a severe personality disorder in combination with diminished intelligence . The numerous cases of fraud committed by the applicant were a direct consequence of that personality disorder . The disorder had also been noted in other examinations of the applicant in connection with previous criminal proceedings . The expert opinion stressed that the applicant had built his own dreamworld in which he saw himself as a very wealthy and smart businessman and which was carefully protected from outside social contacts . Because of his diminished intellectual capacity , the applicant lacked the capacity to estimate the consequences of his behaviour . The expert opinion concluded that there was a high danger of recidivism . ORG agreed with this conclusion , given that the lengthy period of imprisonment had not deterred the applicant from committing the above frauds . On DATE , ORG ordered the continuation of the placement .

I. The decisions during the period DATE

On DATE , ORG again ordered the continuation of the applicant ’s placement in the hospital and scheduled the next review date for DATE . The court found that it could not be expected that the applicant would not commit any further offences and concluded that the remainder of the sentence could not be suspended on probation . ORG heard the applicant in the presence of his therapist and obtained a statement by the treating doctors of the psychiatric clinic . That statement was explained and discussed during the court hearing . According to the statement , collaboration with the applicant was markedly difficult . There was no sign of understanding of his disorder or a motivation for improvement on the part of the applicant . On the other hand , the applicant sought to live out his need for recognition through numerous legal proceedings , denunciations of clinic staff and disciplinary complaints . For DATE , the therapist had tried to increase trust in order to enable the applicant to settle his disputes without recourse to legal means . As the applicant increasingly adopted realistic views , the treatment showed first signs of success . An essential change in the applicant ’s personality could however not be noted . ORG , after having heard the applicant , agreed with the clinic ’s statement and found that the applicant ’s situation , in particular his need for recognition , had not changed . As the impression which the court obtained from hearing the applicant matched exactly the clinic ’s statement , the court saw no need to order an expert opinion by an outside expert .

On DATE , ORG dismissed the applicant ’s appeal against the decision of ORG of DATE . It found that it had not been necessary to obtain the opinion of an independent expert as the convincing expert opinion of the clinic doctors clearly indicated that a suspension could not be accounted for . The court agreed with the reasoning of ORG that a positive change in the applicant ’s personality could not be observed . On the contrary , there existed the risk that the applicant , left at large , would commit further offences in the future which demanded the execution of the placement and continuing treatment . ORG noted that the applicant had announced the submission of an expert opinion ( ORG ) which had not been introduced in time .

On DATE , ORG refused to admit the applicant ’s constitutional complaint . It reasoned that the ordinary courts had sufficiently taken into account the applicant ’s right to liberty . The courts had considered an expert opinion which at the time had not been DATE together with a statement by the hospital . The latter document had not indicated that the applicant had responded to the treatment . Hence the courts had not been required to order a new expert opinion by an independent expert . It could not be objected to from a constitutional point of view that the courts had made a prognosis which was unfavourable to the applicant and that they did not consider the suspension of the applicant ’s placement . On the contrary , the decisions were reasonable given the number of frauds committed by the applicant who had caused considerable damage and the lack of success in treating the applicant ’s personality disorder which had abetted those offences .

The applicant was represented by legal counsel in the above proceedings .

II . Further developments regarding the applicant ’s placement

According to the applicant , the continuation of his placement was ordered on an DATE basis in DATE , each time allegedly without having considered the opinion of an independent expert .

Relevant provisions of LAW )

Measures of reform and prevention are :

placement in a psychiatric hospital ; ( ... )

A measure of reform and prevention may not be ordered when it is disproportionate to the significance of the acts committed by , or expected to be committed by the perpetrator , as well as to the degree of danger he poses .

Section CARDINAL Placement in a ORG

If someone committed an unlawful act and at the time lacked capacity to be adjudged guilty ( LAW ) or was in a state of diminished capacity ( LAW ) , the court shall order placement in a psychiatric hospital if a comprehensive evaluation of the perpetrator and his act reveals that , as a result of his condition serious unlawful acts can be expected of him and he therefore presents a danger to the general public .

( CARDINAL ) If placement in an institution pursuant to Sections CARDINAL and CARDINAL is ordered collaterally to imprisonment , then the measure shall be executed before the punishment .

( CARDINAL ) If the measure is executed before the punishment , then the court may suspend the execution of the remainder of punishment and grant probation under the provisions of LAW subsection ( CARDINAL ) , sent . CARDINAL , no . CARDINAL , if CARDINAL of the punishment has been completed . If the remainder of punishment is not suspended , the execution of the measure shall continue ; the court may nevertheless order the execution of the punishment if circumstances relating to the convicted person make it seem advisable .

( CARDINAL ) If no maximum term has been provided or the term has not yet expired , then the court shall suspend the further execution of the placement and grant probation if it can be expected that the person under placement will not commit any more unlawful acts if released from execution of the measure . Supervision of conduct shall commence with the suspension .

( CARDINAL ) The court may review at any time whether the further execution of the placement should be suspended and probation granted . It shall make this review before the expiration of specified terms .

( CARDINAL ) With respect to the various placements , these terms shall be : ( ... ) DATE , if in a psychiatric hospital ;


Preliminary objection dismissed (non-exhaustion);Violation of Art. 3 as regards treatment on arrest;No violation of Art. 3 as regards treatment during detention;Violation of Art. 5-4;Violation of Art. 5-5;Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award

On DATE at TIME the applicant crossed the border between GPE and GPE near PERSON in a car belonging to his partner . In the car he had a package of pills which he had been asked to bring to GPE by an acquaintance of NORP origin . He did not declare this fact to the customs officers . At TIME on DATE the applicant was arrested by the NORP police in GPE , QUANTITY from the border crossing , where he was expected to hand over the pills to another person .

The circumstances of the arrest are in dispute between the parties .

According to the applicant 's version of the facts , he found himself encircled by CARDINAL men who had a sawn - off shotgun and pistols . They were dressed in black and wore black masks . They attacked the applicant without any prior warning . Several other men were standing nearby . The applicant was held fast and made no attempt to resist . Despite his shouting in both NORP and LANGUAGE that he was not resisting , he was dragged brutally to the bonnet of a car . CARDINAL men held him fast and pushed the upper part of his body against the bonnet . His hands were pulled behind his back and he was handcuffed . At the same time CARDINAL other men kept hitting him on the head with cudgels and fists . His face was seriously injured and he suffered severe pain .

In their memorial of CARDINAL DATE the ORG explained that the applicant had been arrested in the context of an action which had been planned by the competent authorities on the basis of their operational data . When constituting the arrest team the authorities bore in mind the fact that the applicant , whom they suspected of being a drug dealer , was extremely strong as he had won the NORP body - building championship on several occasions .

In their oral submissions to the ORG , the ORG relied on the conclusions reached by a CARDINAL - member commission established upon an order issued by the head of ORG on CARDINAL DATE with a view to determining whether the use of force during the applicant 's arrest had been justified . The report was adopted on DATE and the ORG submitted a copy to ORG on DATE following the hearing on the merits of the case . The relevant parts read as follows :

“ ... CARDINAL criminal investigators were designated with a view to apprehending the dealers ... They had standard equipment – identification jackets and personal weapons . They also carried equipment for handcuffing and restraining the suspects ...

At the parking area [ the suspects ] were approached by the criminal investigators who shouted ' Stop ! Police ! ' and instructed the suspects to stand still ... Criminal investigators B. and PERSON approached [ the applicant ] and attempted to search him ... [ The applicant ] disobeyed their command to remain still and tried to escape . Criminal investigators PERSON and PERSON prevented him from doing so by taking hold of him . They attempted to apply the ' elbow lock ' grip [ on the applicant ] ... Being physically strong , [ the applicant ] tried to release himself . The investigators continued applying the grip with a view to preventing [ the applicant ] from escaping . Because of [ the applicant 's ] strength they were unable to complete the grip in a standing position and therefore agreed to push [ the applicant ] down to the ground . As [ the applicant ] again tried to free himself , the criminal investigators had to bring him to the ground on the spot where they were standing . Since [ the applicant ] resisted and since there was a risk that he would attempt to escape , they were unable to choose a better location where there would be no danger of sustaining injuries . They pushed [ the applicant ] down to the ground between parked cars . In the course of the action [ the applicant ] hit his face on the mudguard of a parked car and on the tar - paved surface of the parking area . The investigators handcuffed [ the applicant ] while he was lying on the ground .

All [ CARDINAL ] suspects were then taken to the police station in LOC . At the time of the arrest [ the applicant ] did not complain of any pain or injury ...

On DATE at TIME [ the CARDINAL suspects ] were taken into detention ... and on DATE they were brought before the investigating judge of the Slovenj ORG who issued a detention order ...

On DATE [ the applicant ] complained of pain in his jaw ... He was taken to the medical centre in LOC where it was established that his lower jaw was broken and that he had suffered a serious bodily injury ...

On the basis of the carefully collected information the commission concluded that criminal investigators PERSON and PERSON had acted correctly and in accordance with the law . The injury sustained [ by the applicant ] had occurred exclusively at the site of the arrest while he was being pushed down to the ground ...

While arresting [ the applicant ] , the criminal investigators used the mildest forms of coercion – physical force and handcuffing . They thereby prevented a person apprehended at the scene of a criminal offence from escaping . The injury occurred because [ the applicant ] was resisting his arrest and the investigators were therefore unable to push him to the ground at a different place with the use of less force .

The commission concludes that , regardless of its consequences , the use of force was justified and in conformity with section CARDINAL of LAW and also with sections CARDINAL and CARDINAL of the Instruction on the Use of Coercive Measures ... ”

By a letter of CARDINAL DATE the Government also informed the ORG , at its request , that there had been CARDINAL police officers involved in the operation and that QUANTITY of them had been designated to handcuff the applicant .

After his arrest the applicant was detained by the police in LOC . He submitted before the ORG that he had been suffering from headaches and had problems with his vision and that he had been examined by a doctor for the first time in TIME CARDINAL September CARDINAL . On CARDINAL DATE at TIME the applicant wrote and signed a statement , according to him upon the instructions of the police , indicating that he had fallen and hit his face against the edge of a car DATE .

The Government submitted that the applicant had complained for the first time about pains in his jaw to the duty officer in TIME of CARDINAL DATE and that a doctor had immediately been called . The doctor had recommended that the applicant be examined at ORG , from where he was transferred to ORG .

The documents before the ORG indicate that the applicant was examined meticulously by a doctor at the cervico - facial surgery department of ORG on DATE . The report states that he was brought to the hospital by the police and that his jaw was injured . The applicant told the doctor that he had been injured by the police . The latter stated that the applicant had hit the edge of a car during his arrest .

The doctor found that the applicant 's temporo - mandibular joint was sensitive to pressure and that he could not open his mouth properly . The report further stated that the applicant 's occlusion was irregular as the teeth on the left side had been displaced . The doctor X - rayed the applicant and diagnosed a double fracture of the jaw and facial contusions .

The doctor concluded that surgery under general anaesthesia was necessary and made arrangements for it to be carried out DATE . He allowed the police to keep the applicant in custody in the meantime .

On DATE the applicant was brought to the hospital , but he did not consent to the operation as he considered that he would be released soon and that he would be operated on in GPE . It was agreed that the applicant would be examined again on DATE .

On DATE the applicant was re - examined and stated that he felt sick and that he had vomited . He did not consent to the surgery recommended by the doctor . The latter ordered that mashed food should be served to the applicant . Another examination was fixed for DATE .

The medical report of CARDINAL DATE indicates that the applicant felt better . His pain was less severe but still present when he was chewing and eating .

On DATE the applicant refused to undergo a further examination in a hospital .

The applicant was again examined at ORG on CARDINAL DATE and on DATE and DATE . He admitted a slight improvement of his problems with the jaw , but complained of pain in his abdomen and blood in his excrement . He refused a rectal examination . His abdomen and urine were examined but no abnormalities were found . The doctors prescribed a special diet and , if need be , a further examination .

On DATE the applicant was examined at ORG . The report states that his dental occlusion was altered and that he had pain in his jaw .

On DATE the applicant was treated in the hospital for CARDINAL superficial cuts on his left wrist , which he had caused himself , while in a state of depression , on DATE .

In a letter of CARDINAL DATE addressed to ORG the applicant complained that he had been brutally beaten up and that he had suffered a double fracture of his jaw . He stated that he had not been provided with appropriate medical care and claimed damages of MONEY ( DEM ) .

A further medical examination was carried out on DATE . The doctor prescribed pain - killers to the applicant and noted that a specialist should be consulted as regards the treatment of his jaw .

On DATE a specialist concluded that the applicant 's jaw required prothetic rehabilitation or even surgery . As the applicant had stated that he wished to undergo treatment in GPE , the doctor recommended that he should be sent there as soon as possible .

On DATE the applicant complained to the prison governor that he was suffering pain due to an inflammation in his middle ear and requested treatment in a hospital .

On DATE the applicant complained to a doctor about severe pain in his head and that he had not been provided with appropriate medical care in the prison . In particular , he complained that the medication prescribed for him had not been given to him regularly .

On DATE the applicant complained to the GPE prison governor that on CARDINAL and DATE the guards had not provided him with the pain - killers prescribed by the doctor and that , as a result , he was suffering severe pain and was depressed .

On DATE the applicant complained to the prison governor that on DATE he had not been provided with the medication which had been prescribed for him . On DATE and DATE he complained again that medication had been refused him . In his complaints the applicant stated that he wished to bring criminal proceedings against the staff of the prison and requested that he should be allowed to file a criminal complaint with the police .

On DATE the applicant complained to a judge of ORG ( PERSON sodišče ) that he suffered severe pain and that he had been provided with pain - killers only irregularly .

On DATE an investigating judge of the Slovenj Gradec Regional Court ( Okrožno sodišče ) remanded the applicant in custody .

On DATE the applicant lodged , through his lawyer , a request for release . He submitted that he would not abscond and offered a security of DEM CARDINAL . The applicant further claimed that his detention was no longer necessary as all witnesses in the criminal proceedings which had been brought against him had already been heard and that all relevant evidence had been taken .

On DATE the ORG extended the applicant 's detention on remand until DATE pursuant to LAW of LAW . The court noted that the investigation into the applicant 's case could not be completed within DATE .

The applicant lodged a complaint . He claimed that there was no reason for his detention and that ORG had not ruled on his request for release of DATE .

On DATE ORG dismissed the complaint . It noted that the applicant was a foreign national who had no links in GPE . It therefore held that there was a risk that he might abscond . As to the applicant 's request for release on bail , ORG held that it had to be examined by ORG first .

On DATE the ORG dismissed the applicant 's request for release of DATE . The court did not consider the security offered by the applicant as a sufficient guarantee that he would attend the proceedings before it .

On DATE the ORG extended the applicant 's detention on remand pursuant to LAW .

On DATE ORG dismissed an appeal by the applicant against the above decision .

On DATE the applicant lodged , through his lawyer , another request for release . He claimed that there were no relevant reasons for his detention and offered a security of DEM CARDINAL .

The Slovenj Gradec Regional Court dismissed the request on CARDINAL DATE .

During his detention in GPE the applicant 's correspondence , including the correspondence with the Commission , was monitored .

On DATE the ORG convicted the applicant of unauthorised production of and dealing in narcotics and of smuggling . The applicant was sentenced to DATE imprisonment .

On DATE ORG dismissed an appeal by the applicant and , allowing an appeal by the public prosecutor , increased the sentence imposed to DATE imprisonment .

DATE . On DATE the applicant was released conditionally .

Article CARDINAL guarantees to everyone the right to compensation for any damage resulting from unlawful official acts committed by individuals or bodies carrying out tasks vested in State organs .

Section CARDINAL of LAW ( Zakon o notranjih zadevah ) of DATE , as amended , entitles authorised officials to have recourse to physical force in the exercise of their duties when , inter alia , they can not otherwise overcome the resistance of a person who refuses to comply with lawful orders or who is to be arrested .

Section CARDINAL of the Instruction on the Use of Coercive Measures ( Navodilo o uporabi prisilnih sredstev ) of CARDINAL DATE , as amended , provides , inter alia , that recourse to physical force in the cases enumerated in section QUANTITY of LAW of DATE should normally be restricted to special holds . When the authorised officials consider that such means are not sufficient , they may have recourse to blows or a rubber truncheon . In any event , physical force and rubber truncheons may only be used to the extent that is strictly necessary to overcome resistance or to prevent an attack , and the use of force should never result in ill - treatment of the person concerned .

Section CARDINAL of the Instruction on the Use of Coercive Measures permits authorised officials to handcuff a person or to restrain him or her by other means if it can reasonably be expected that the person concerned will actively resist or attempt to escape .

Article CARDINAL § CARDINAL provides that an investigating judge may remand an accused person in custody for no longer than a month from the moment when he or she was arrested . After the expiry of this period , a person may be detained only on the basis of a decision to extend his or her detention .

Under LAW , such a decision must be delivered by a court and the detention may thereby be extended for no longer than DATE .

Article CARDINAL § CARDINAL provides that a detainee may correspond with or establish other contacts with persons outside the prison with the consent and under the supervision of the investigating judge dealing with his or her case . The latter may prohibit the detainee from sending or receiving letters or from having other contacts where these could affect the criminal proceedings pending against him or her . However , it is not permissible to prevent a detained person from lodging applications or appeals .

Article CARDINALb was enacted on DATE . Paragraph CARDINAL empowers the ORG and his deputies to visit detained persons and to communicate with them in writing without previous notification of the investigating judge and free of any supervision by the latter or by any other official . This provision has also been applied , by analogy , to correspondence between detained persons and ORG .

According to LAW , when an indictment is filed against a person detained on remand and provided that it does not contain a proposal that such a person should be released , a court must examine , of its own motion and within DATE after the filing of the indictment , whether there are relevant reasons for the further detention of the accused , and issue a decision by which either the detention on remand is extended or the person concerned is released .

Article CARDINAL § CARDINAL gives rise to a right to compensation for detained persons who were not committed for trial , or were acquitted or discharged after standing trial , for persons who served a prison sentence which was subsequently reduced or quashed and also for those who were arrested or detained as a result of an error or unlawful act , or whose detention on remand exceeded the term of imprisonment to which they were sentenced .


Violation of P1-1;Pecuniary and non-pecuniary damage - award

Alvina Gyulumyan;András Sajó;Christos Rozakis;Elisabet Fura;Françoise Tulkens;George Nicolaou;Giorgio Malinverni;Ineta Ziemele;Ireneu Cabral Barreto;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Mark Villiger;Mihai Poalelungi;Nicolas Bratza;Peer Lorenzen;Sverre Erik Jebens;Vladimiro Zagrebelsky;Zdravka Kalaydjieva

The applicants were born in DATE and DATE respectively and live in GPE .

The applicants owned a piece of land measuring CARDINAL m² in the region of FAC . By order of ORG , published in ORG on DATE , the land was expropriated in favour of BRISA – Auto - Estradas de Portugal S.A. ( “ BRISA ” ) , a publicly owned company at the time , to build a motorway .

As no agreement was reached between the applicants and the authorities , the case was submitted , in accordance with the applicable legislation , to the President of ORG , who appointed an arbitration committee to value the land . The committee assessed its value at MONEY ( ORG ) .

On DATE the ORG first - instance court issued an order notifying the applicants of the arbitration committee 's decision .

On DATE the applicants lodged an appeal against the arbitration decision with the ORG court . In their opinion the experts had underestimated the value of their farmland and omitted to place a value on a quarry located on the land . They argued that the potential profit from exploiting the quarry should be taken into account when calculating the amount to be paid in compensation for the expropriation . In their opinion they were entitled to ORG CARDINAL,CARDINAL,CARDINAL in compensation .

NORP BRISA also challenged the arbitration value , which they considered too high . They thought the value should not exceed LAW . Their appeal was initially rejected by the ORG court as being out of time , but it was later admitted after ORG had delivered a judgment on DATE setting aside the initial decision .

On DATE the ORG court registry calculated the total court fees due in the applicants ' case to be ORG CARDINAL .

On DATE the ORG court decided that no compensation should yet be paid to the applicants as the court fees might well be higher than the minimum sum that might be awarded to the applicants in compensation according to the appeals lodged by the parties , BRISA having requested that the sum be fixed at ORG CARDINAL,CARDINAL . The court then appointed a new arbitration committee made up of CARDINAL experts appointed by the court and CARDINAL appointed by the parties ( CARDINAL each ) . On DATE , by a majority , the arbitrators set the compensation at ORG CARDINAL . The arbitrator appointed by the applicants expressed the view that they should be paid EUR CARDINAL .

By an order of CARDINAL DATE the court , of its own motion , requested a new expert report , restricted this time to the question of the economic potential of the quarry located on the land . CARDINAL geologists from ORG were accordingly appointed as experts . They submitted their report on DATE , concluding that the maximum amount the exploitation of the quarry could be expected to yield was ORG CARDINAL .

By a judgment of DATE the court dismissed both parties ' appeals . Considering that the potential gain from the quarry was not to be taken into account , it fixed the compensation for the expropriation at ORG GPE .

On DATE the applicants lodged an appeal against that judgment with ORG .

In a judgment of DATE ORG upheld the judgment in full .

On DATE the applicants appealed to ORG but , in an order dated DATE , the judge rapporteur of ORG declared the appeal inadmissible .

On DATE the applicants lodged a constitutional appeal , which ORG declared inadmissible by a summary decision on DATE .

On DATE the file was transmitted to the ORG court .

On DATE the applicants received notice from the ORG court of the court fees owed for the expropriation proceedings . The sum they were expected to pay amounted to ORG .

On DATE the applicants filed a complaint about the fees , alleging in particular that they violated the principles of fair compensation and the right of access to a court . They considered that the sum to be paid , if it was to be proportionate , should not exceed LAW . They also pointed out what they considered to be various inaccuracies and miscalculations in the court fees . They challenged the basis used before the ORG court to calculate the court tax ( which they claimed should have been that stipulated in LAW ) , as well as the legitimacy of being required to pay anything at all in respect of costs and expenses ( custas de parte ) to BRISA , which , as a ORG enterprise , was exempt from paying court fees .

On DATE , acting on information provided by the registry , the ORG court judge acknowledged the mistakes the applicants had pointed out and ordered their rectification . The amount owed was thus reduced to ORG CARDINAL,CARDINAL.CARDINAL so , once the compensation awarded to the applicants had been deducted , they still owed the ORG EUR CARDINAL,CARDINAL.CARDINAL . The judge dismissed the applicants ' complaint regarding the alleged violations of the principles of fair compensation and the right of access to a court .

The applicants appealed to ORG . In a judgment of DATE , of which they were notified on DATE , the court dismissed the appeal .

On DATE the applicants lodged a constitutional appeal against that decision , alleging that the interpretation of the relevant provisions of LAW , particularly LAW , was contrary to the principles of fair compensation and the right of access to a court guaranteed in LAW . In their view , court fees should on no account exceed the sum awarded in compensation for an expropriation .

In a judgment of CARDINAL DATE ORG dismissed their appeal . After noting that it could only examine the constitutionality of LAW of LAW , the only provision the courts below had applied , it went on to hold that the provision concerned was not contrary to LAW ( access to a court ) and CARDINAL § CARDINAL ( fair compensation ) of the LAW . Concerning access to a court , it pointed out that while excessively high court fees could in some circumstances be an obstacle to access to a court , this was not the case in this instance as the applicants had been required to pay only LAW , a sum it considered reasonable . On the subject of fair compensation , ORG found that compensation for the loss suffered as a result of expropriation was quite unrelated to the matter of court fees , and that there was accordingly no reason why court fees should not exceed the sum awarded in compensation .

On DATE the applicants filed a request to have that judgment rectified , claiming that ORG had made a factual mistake , in so far as it had considered in its reasoning that the applicants owed ORG CARDINAL in court fees when they were in fact expected to pay ORG MONEY .

In a judgment of CARDINAL DATE ORG acknowledged its mistake and the need to rectify the judgment in respect of LAW . It found that ORG CARDINAL,CARDINAL.CARDINAL was a large enough sum to have affected the right of access to a court . It accordingly declared LAW of LAW , as interpreted by the lower courts , contrary to LAW . In respect of LAW concerning fair compensation , however , it held that its earlier decision needed no rectification .

On DATE the applicants , wishing to know the exact sum they owed in court fees , filed a request for clarification of the judgment of DATE .

In a judgment of CARDINAL DATE ORG rejected that request , considering that it was for the lower court to determine the sum to be paid .

In an order of DATE , the ORG court , to which the case had been referred back , decided , without giving reasons , that the fees should not exceed the compensation awarded by CARDINAL .

On DATE the applicants paid the outstanding sum of ORG CARDINAL .

On DATE the applicants lodged an application ( no . CARDINAL/CARDINAL ) with the ORG complaining about the lack of compensation in respect of the quarry . The application was rejected by a committee on DATE , as being out of time .

Article CARDINAL of the LAW guarantees the right of access to a court . LAW guarantees the right of property and the right to fair compensation in the event of expropriation .

The general rule governing court fees is set forth in LAW , under the terms of which it is in principle for the unsuccessful party to pay the court fees .

At the time of the expropriation in issue , the applicable Expropriations Code was that introduced by Legislative Decree no . CARDINAL of CARDINAL DATE .

NORP The expropriation procedure at the time took the following form : if no agreement could be reached between the expropriating authority and the expropriated owner , the President of ORG with jurisdiction over the area in which the property to be expropriated was located appointed an arbitration committee to value the property . The owner could appeal against the arbitration decision before the court of first instance , and a new valuation would be ordered if necessary . The decision of the first - instance court was open to appeal before ORG , whose decision was final ( legislative precedent ( assento ) of ORG of CARDINAL DATE , binding on all courts and published in ORG of DATE ) .

In GPE court fees are likened to taxes . ORG considers that the obligation for litigants to pay court fees is the same as the obligation for taxpayers to pay taxes . The ORG , as the “ active subject ” of the fiscal obligation concerned , thus has the right to collect the fees ; in exchange , it must give people ( the “ passive subjects ” ) access to judicial services ( judgment of ORG of DATE , in case no . CARDINALBCARDINAL ) .

At the material time court fees were regulated by LAW , as embodied in LAW no . CARDINAL-A/CARDINAL , of DATE , before it was amended by Legislative Decree no . CARDINAL , of DATE .

The relevant provisions of the Code read as follows :

“ CARDINAL . Court fees shall include the court tax ( taxa de justiça ) and the other charges ( encargos ) .

Unless otherwise prescribed by law , all proceedings are subject to court fees . ”

“ CARDINAL . Without prejudice to the provisions of special laws , the following shall be exempted from court fees :

a ) The ORG and all its services and bodies , even if they have their own legal personality ;

“ CARDINAL . In the cases mentioned below , the value of the litigation , for the purposes of calculating court fees , shall be as follows :

s ) in appeals concerning expropriations , the difference between the compensation for expropriation fixed by the arbitration committee and the sum claimed by [ the expropriated party ] ...

“ CARDINAL . Without prejudice to the following provisions , procedural costs shall be taxed on the basis of the table below and calculated according to the value of the actions , applications and appeals .

NORP In all types of appeals against decisions pronounced in any action or application ... the court tax shall be CARDINAL the amount shown in the tax column in the table [ in LAW ] .

No advance payment shall be required in expropriation proceedings ... ”

“ CARDINAL . A party ordered to pay court fees who is awarded a sum of money by decision of the court may request , within the time - limit for voluntary payment , that the court fees owed be deducted from the sum awarded .

Court fees owed by an expropriated party shall be deducted from the compensation awarded for the expropriation . ”

The custas de parte ( costs and expenses ) are sums payable to the successful party at the end of the proceedings . Under LAW as applicable at the material time , they included the sums the successful party had been obliged to spend in connection with the proceedings .

On DATE a new Court Fees Code was introduced ( Legislative Decree no . CARDINAL/CARDINAL ) . The explanatory memorandum includes the following passage :

“ According to the new scale , the court tax is not calculated simply on the basis of the value in dispute . It has been found that the sum in dispute is not a decisive factor in assessing the complexity of the proceedings or in the costs generated for the legal system . The search for a better way to calculate the court tax has led to the establishment of a mixed system based on the value in dispute up to a certain limit , with the possibility of correcting the amount where the proceedings are complex , independently of the economic value considered to be at stake . ”

Under the new system there is therefore an upper limit on the amount that can be charged in court fees . At present , for proceedings at first instance , that amount equals CARDINAL units of account for ordinary proceedings or CARDINAL units of account if the proceedings are particularly complex . The charge for appeals is CARDINAL units of account . Applications made during the proceedings continue to be taxed , of course , at a rate of CARDINAL units of account , depending on the type of application ( see tables appended to Legislative Decree no . CARDINAL/CARDINAL and Articles CARDINAL , DATE , DATE , DATE , DATE , DATE and DATE of that text ) .

The ORG undertook a comparative law study concerning the payment of court fees in a number of member ORG .

The study revealed that , generally speaking , the court fees charged vary according to the sum claimed ( except in countries where fees charged are not based on the sum in dispute ) . The fees may represent a percentage of that sum , a lump sum , or a combination of the CARDINAL . In many GPE where the fees charged are linked to the value of the claim , there is an upper limit on how much one party can be charged , but in some GPE there is no such limit .

In general the unsuccessful party is required to pay the costs of the other party . Where a claim is allowed only in part , most of the GPE covered by the study leave it to the discretion of the courts to decide who pays what fees . In GPE special rules apply to expropriation proceedings . In CARDINAL such ORG , for example , when fees are calculated as a percentage of the compensation offered , the principle is that the expropriated owner must nevertheless be repaid in full ; in other words , all the costs effectively incurred by that party must be reimbursed , as he normally has a right to full reparation for the prejudice suffered .

In many GPE there is no guarantee that a complainant will not be charged costs and expenses in excess of the sum likely to be awarded in respect of his claim , especially when only a small part of the claim is allowed . No such risk exists in those GPE where court fees are calculated only at the end of the proceedings and based on the sum effectively awarded by the court .


Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings

Gaukur Jörundsson;Luzius Wildhaber;Nicolas Bratza

DATE the applicant was the sole managing director of ORG ( “ ORG ” ) , a company which owned and controlled CARDINAL of the CARDINAL casinos licensed to operate in GPE . ORG was a subsidiary company of ORG ( “ ORG ” ) of which the applicant was also managing director . Both companies will hereafter be collectively referred to as GPE Clubs .

NORP In DATE a raid took place at the various premises of ORG . The raid was carried out by the police in the presence of officials of ORG for GPE ( “ the Gaming Board ” ) , a statutory body which regulates and monitors the gaming industry . A large quantity of documents was seized . In DATE ORG lodged objections with the clerk to ORG with regard to ORG 's DATE application for renewal of the licences it held in respect of each of its casinos . ORG also made cancellation applications in respect of the existing licences held by ORG .

A meeting was held between ORG and the non - executive directors of ORG and their legal advisers on DATE . As a result of that meeting , the applicant and the other executive directors ( with the exception of the finance director ) resigned with effect from DATE , on the understanding that such resignation was involuntary and constituted dismissal by ORG .

Subsequently an agreement was reached between ORG and ORG , whereby ORG would apply for new licences for the casinos via reconstituted operating companies , to which applications ORG would not object . If the applications were successful and new licences were granted by ORG , ORG would undertake to surrender its existing licences , thereby avoiding the necessity for the applications for cancellation or renewal to be heard .

ORG issued ORG with certificates of consent , which ORG was statutorily obliged to obtain from ORG as a prerequisite to making an application to ORG for new licences . Objections to the issuing of new licences were made by a rival casino owner . However , these objections were rejected and new licences were granted in DATE , after DATE hearing before ORG . ORG was represented at the hearing and expressed to ORG its support for the application of ORG , explaining the grounds on which ORG itself had granted ORG certificates of consent in the following terms :

“ In determining that it should issue certificates of consent ORG took into consideration , amongst other relevant factors , the degree to which ORG had addressed the ORG 's grave concerns at the matters of complaint referred to above , and in particular had in mind the following :

Those executive directors of ORG and of [ ORG ] who in the ORG 's view carried the principal responsibility for the matters of complaint ... [ the applicant was named along with CARDINAL others ] have left the company and relinquished their management shares .

ORG viewed the matters raised in their cancellation applications extremely seriously . However they are satisfied that the practices that were unacceptable have now been eradicated and that those individuals responsible for encouraging or tolerating them have been removed . ”

In DATE the Chairman of ORG , PERSON , addressed ORG at its DATE luncheon . Her speech referred to ORG and commented :

“ We [ ORG ] satisfied ourselves that the practices we and the Police had regarded as unacceptable had ceased , that persons regarded by ORG as not fit and proper had been removed ... ”

As a result of this speech , the applicant 's legal advisers entered into correspondence with ORG solicitors , on the basis that the speech was defamatory . ORG alleged that the “ persons ” referred to were minority shareholders and no reference to the applicant was intended . The applicant did not accept this explanation , but did not institute defamation proceedings .

By a letter of CARDINAL DATE , the applicant 's legal advisers received written notice that ORG was considering whether the applicant was a fit and proper person to hold the ORG 's certificate of approval , as required by LAW DATE ( “ the DATE LAW ) in order to hold a management position in the gaming industry . By a letter dated DATE , ORG informed the applicant formally that it was “ minded to revoke ” the applicant 's section CARDINAL certificates and that the applicant would be given the opportunity to state his case against revocation either in writing or orally at an interview before ORG ( “ a section CARDINAL hearing ” ) .

The letter detailed the matters which ORG wished to discuss with the applicant and also referred to the particulars of ORG complaints in the application for cancellation of ORG 's licences ( the hearing of which had , in fact , never taken place ) . In these complaints , numbered CARDINAL to BCARDINAL , it was claimed , inter alia , that there had been breaches of section CARDINAL of LAW , in that cheques had been accepted without any expectation that they would be met promptly ( CARDINAL ) ; that the applicant had been involved in granting cheque - cashing facilities to members without proper investigation of their creditworthiness ( BCARDINAL ) ; that cheques had been accepted which exceeded the authors ' cheque - cashing facility ( FAC ) ; that third - party cheques had been accepted in a way which would permit circumvention of the DATE LAW ( BCARDINAL ) ; that NORP players had been assisted in breaching NORP exchange - control regulations ( BCARDINAL ) ; that gifts or hospitality had been made to substantial players in breach of further DATE guidelines ( ORG ) ; and that the method for computing the “ cash drop ” in casinos produced inaccuracies , and was open to abuse ( BCARDINAL ) . Examples were given .

The applicant 's legal advisers objected to ORG presiding the section CARDINAL hearing , suggesting that an independent tribunal be set up as an alternative . The applicant 's principal objection was based on the fact that ORG had already publicly expressed the view ( at the hearing before ORG ) that the applicant was not a fit and proper person to remain an executive director of ORG . As such , the applicant contended , ORG could not be considered an impartial tribunal appropriate to consider the issue of whether the applicant 's section CARDINAL certificates should be revoked .

ORG rejected the request for an independent tribunal and the section CARDINAL hearing opened on DATE before a panel of CARDINAL , all members of ORG ( “ the Panel ” ) . The hearing was conducted in private and lasted for DATE . The applicant was represented by senior counsel . ORG solicitors , a senior ORG official and a representative of ORG accountants also attended the hearing .

By a letter dated DATE , the applicant was informed that ORG did not consider the applicant to be a fit and proper person to continue to hold the ORG 's certificates of approval and that , accordingly , ORG would revoke his section CARDINAL certificates within DATE of receipt of the letter . This letter detailed the matters which had been of concern to ORG and the complaints that it deemed established against the applicant .

The effect of the revocation of the section CARDINAL certificates was that the applicant was unable to obtain employment in any sector of the gaming industry in GPE or in any jurisdiction which had a relationship with the GPE gaming authorities .

By an application dated DATE , the applicant sought leave to apply for judicial review of the decision of ORG to revoke his section CARDINAL certificates . The decision was challenged on the grounds that the Panel was biased , or had the appearance of bias , and that its findings were vitiated by errors of law and were irrational .

In the course of the judicial review proceedings , a document entitled “ LOC to Minutes of ORG of ORG for GPE ” , dated DATE , was produced , attached to an affidavit sworn by the Chairman of ORG . This document recorded that ORG had decided at its meeting on DATE that it had

“ sufficient evidence before it to conclude that [ the applicant ] ... was not a fit and proper person to be a director of a casino company ” .

All the members of the ORG before which the section CARDINAL hearing took place had been present at the ORG meeting and were parties to this decision , which had been taken prior to the hearing itself .

The application for judicial review was dismissed on DATE by Mr Justice PERSON after a hearing lasting DATE . He delivered CARDINAL separate judgments in respect of the applicant 's appeal . The first judgment dealt with the scope of the phrase “ a fit and proper person ” in Schedule CARDINAL of the DATE Act . The second judgment considered the applicant 's claim that he had a “ legitimate expectation ” that ORG would be precluded from taking account of any breaches of its guidelines unless the breaches were unlawful . The third judgment , which dealt with “ ORG ” challenges and allegations of bias , ran to CARDINAL pages . Mr Justice PERSON stated that the scope of the judicial review was such that he was not concerned to review findings of fact , as for an appeal , but rather to assess whether the findings of the Panel disclosed illegality , irrationality ( “ PERSON unreasonableness ” ) or procedural impropriety .

On pages CARDINAL of the third judgment , Mr Justice PERSON dealt with the applicant 's “ PERSON ” challenges to the findings in respect of the various complaints made of him .

By way of example , it was accepted that cheques drawn by CARDINAL player , a Mr S. , on a NORP and a NORP bank were not cleared within DATE after payment into a NORP bank , as would be the normal course of events . Rather , the average time for clearance was DATE . ORG found that this practice breached section CARDINAL of LAW , which prohibits credit betting save when a cheque is exchanged for tokens . The applicant alleged that the cheques he accepted were not shams , as none of the NORP cheques was ever dishonoured . The judge found that the ORG 's conclusion – that what took place amounted to an agreement between Mr S. and ORG , such that LAW was breached DATE was a conclusion it was entitled to reach .

CARDINAL pages of the third judgment were devoted to the issue of bias . Mr Justice PERSON described the test of bias under LANGUAGE law in the following terms ( pp . CARDINAL of the judgment ) :

“ [ Counsel for the applicant ] submits that the decision to revoke the applicant 's section CARDINAL certificates of approval should be quashed because the Panel was biased . The grounds on which leave to move for judicial review were granted asserted firstly that the ORG could not and did not approach its decision with objectivity and impartiality . Secondly , it was asserted that whether or not there was actual bias the applicant reasonably believed there was and that the ORG should have had regard to the appearance of bias which had been created by its actions ...

There was no disagreement between the parties as to the approach the court should adopt when bias is alleged . It is a CARDINAL - stage test . The applicant has first to show from the evidence that there is an appearance of bias ( NORP v. PERSON , ex parte PERSON [ DATE ] CARDINAL All England Law Reports CARDINAL ) . [ Counsel for ORG ] properly and realistically accepts that in the light of the available evidence the applicant has surmounted this hurdle . Having done so , he has to go on to show that on a proper examination by the court of the evidence before it there is demonstrated a real danger of injustice having occurred as a result of bias ... [ The analysis in that case of ] the decision of ORG in NORP v. PERSON [ DATE ] Appeal Cases CARDINAL ... illuminates my task in relation to this second stage .

' ( CARDINAL ) Any court seised of a challenge on the ground of apparent bias must ascertain the relevant circumstances and consider all the evidence for itself so as to reach its own conclusion on the facts .

( CARDINAL ) In reaching its conclusion the court “ personifies the reasonable man ” .

( CARDINAL ) The question on which the court must reach its own factual conclusion is this : is there a real danger of injustice having occurred as a result of bias ? By “ real ” is meant not without substance . A real danger clearly involves more than a minimal risk , less than a probability . CARDINAL could , I think , as well speak of a real risk or a real possibility .

( CARDINAL ) Injustice will have occurred as a result of bias if “ the decision - maker unfairly regarded with disfavour the case of a party to the issue under consideration by him ” . I take “ unfairly regarded with disfavour ” to mean “ was pre - disposed or prejudiced against CARDINAL party 's case for reasons unconnected with the merits of the issue ” .

( CARDINAL ) A decision - maker may have unfairly regarded with disfavour CARDINAL party 's case either consciously or unconsciously . Where , as here , the applicants expressly disavow any suggestion of actual bias , it seems to me that the court must necessarily be asking itself whether there is a real danger that the decision - maker was unconsciously biased .

( CARDINAL ) ... the court is [ not ] concerned strictly with the appearance of bias but rather with establishing the possibility that there was actual although unconscious bias .

( CARDINAL ) It is not necessary for the applicant to demonstrate a real possibility that the ... decision would have been different but for the bias ; what must be established is the real danger of bias having affected the decision in the sense of having caused the decision - maker , albeit unconsciously , to weigh the competing contentions , and so decide the merits , unfairly . ' ”

Mr Justice PERSON then applied the test of bias which he had set out to the facts of the case , and concluded that , on the evidence before him , he could not say that the applicant had established that there was a real danger of injustice having occurred as a result of bias . He concluded that there was no unconscious bias on the part of any of the ORG members .

Mr Justice PERSON stated further that if , contrary to his finding , there was unconscious bias on the part of the Panel , the “ doctrine of necessity ” fell to be considered . He said :

“ When a body is charged by statute with the power or duty , which can not be delegated , to make a decision in circumstances in which a question of bias arises because :

( i ) in pursuance of that statutory power or duty an initial view has been formed upon a matter affecting the interests of someone in respect of whom the body in the exercise of its statutory power or duty has thereafter to make a decision , or final decision , after receiving and considering representations which he is entitled to make or

( ii ) in the exercise of a statutory power or duty to make a decision a conflict arises between the interests of another or others which have to be taken into account and the body 's own interests :

the decision will not be liable to be impugned on account of bias provided that :

( i ) if only some of those charged with the power or duty to decide are potentially affected by bias such of them as can lawfully withdraw from the decision - making do so , and

( ii ) those of the decision - makers who are potentially affected by bias but can not lawfully withdraw use their best endeavours to avoid the effect of bias and , consistently with the purpose for which its decision has to be made , the body takes what reasonable steps are open to it to minimise the risk of bias affecting them ... ”

Mr Justice PERSON indicated that if , contrary to his finding , there was unconscious bias on the part of the Panel , the doctrine of necessity would apply , and the decision of the Panel would stand . Counsel for the applicant submitted before PERSON Justice PERSON that the Board had failed to take the reasonable step of appointing an independent body to hear evidence and report to the Panel . Mr Justice PERSON rejected the submission , on the grounds that no useful reference could have been made to an independent tribunal which did not involve an impermissible delegation .

In respect of all other allegations brought by the applicant , Mr Justice PERSON concluded that the applicant had failed to establish that the ORG 's decision was irrational or unreasonable or to make out any sufficient ground for judicial review . Mr Justice PERSON noted that , by trying to frame his allegations in terms of “ PERSON unreasonableness ” , the applicant was in fact making an impermissible attempt to re - argue the case as though on appeal in order to have the factual merits of the case re - examined .

ORG , after an oral hearing on DATE , refused an application for leave to appeal from Mr Justice PERSON 's decision . Lord Justice PERSON ( with whom Lord Justice PERSON agreed ) held , on the “ doctrine of necessity , ” as follows :

“ I am prepared to assume in favour of [ the applicant ] that he would have an arguable case sufficient to justify leave to appeal , that there was a real risk that the decision of the tribunal had been actuated by bias even though they were not in fact biased against him . That would leave the question of how the doctrine of necessity would be applied to the facts of the case .

[ Counsel for the applicant ] did not seek to suggest that the propositions of law which [ Mr Justice PERSON ] enunciated , and which I have quoted , were not accurately formulated by him , but he sought to challenge the final conclusion , to which I have just referred , that there could have been [ no ] useful reference to an independent tribunal which did not involve an impermissible delegation . The question of bias , therefore , depends on the very limited point of whether it is arguable that [ Mr Justice PERSON ] was wrong in that respect . I am bound to say that , on that limited point , I think he was manifestly right . The decision for ORG was , at DATE , whether or not Mr PERSON was a fit and proper person . That could not be delegated to an independent panel and if they were actuated by bias , apparent or real , then the decision would still have to be made by them . Therefore , on the doctrine of necessity , which is accepted , there could have been no meaningful independent panel and the decision would stand because the decision has to be made by ORG and could not be delegated to the independent tribunal . It seems to me that there is no arguable point , susceptible on this part of the case , which would justify giving leave to appeal . ”

ORG for GPE ( “ the Gaming Board ” ) is a statutory body , established under LAW DATE ( “ the DATE LAW ) to regulate and monitor the gaming industry . In order for any company to obtain the requisite gaming licence for LOC , a certificate must first be issued by ORG consenting to the company applying for such a licence ( Schedule CARDINAL , paragraph CARDINAL ) , of the DATE Act ) .

Under section CARDINAL of the DATE Act ORG issues certificates to individuals in order that they be permitted to hold certain positions in the gaming industry . A certificate , once issued , continues to be in force unless and until it is revoked . ORG may revoke the certificate at any time if it appears to ORG that the person to whom it relates is not a fit and proper person to perform the specified function or act in the specified capacity ( Schedule CARDINAL , paragraph CARDINAL , of the DATE Act ) . DATE written notice of the revocation must be given to the certificate holder . ORG has developed a procedure whereby an individual is sent a letter in which the ORG states that it is minded to revoke his certificate . This is followed by the submission of written representations and/or an oral hearing .


GRAINGER AND OTHERS v. THE UNITED KINGDOM

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

The following summary of the facts is based on the applicants’ submissions and the findings of the domestic courts .

NORP The names of the applicants and their representatives are set out in the attached table . CARDINAL of the applicants , ORG , is an investment fund incorporated in GPE . As a result of transactions DATE it became the largest shareholder in LOC plc , with CARDINAL shares , amounting to PERCENT of the issued ordinary share capital . Another applicant , RAB Special Situations ( Master ) Fund Ltd is also an investment company incorporated in GPE . It acquired its shares in LOC by transactions DATE and DATE . By the date of LOC nationalisation , it owned CARDINAL shares , amounting to PERCENT of the issued ordinary share capital . The remaining applicants are individual small shareholders , some of whom acquired their shares on demutualisation ; others of whom acquired theirs as employees under an approved profit share scheme or share incentive plan , or other incentive schemes , or by contributions to the company pension fund . Others were small investors who bought their shares on the stock exchange . At the date of nationalisation there were CARDINAL small shareholders .

LOC was originally a building society . In DATE it was converted into a public limited company , listed on ORG and authorised to carry on business as a bank . On its demutualisation , shares were issued to its existing depositors . Its core business remained residential mortgage lending . It grew to become the fifth largest GPE mortgage lender and the eighth largest GPE bank .

Unlike most other banks in GPE , LOC financed a large part of the loans it made to lenders by borrowing money and by issuing bonds backed by a pool of mortgage loans . As a result of turbulence in the international financial markets , by DATE it had become impossible for it to raise sufficient money on the wholesale market . Moreover , the problems in GPE associated with the securitisation of subprime mortgages made it impossible for LOC to raise funds by securitising its own mortgage book .

LOC assets , as valued and stated in its balance sheet , exceeded its liabilities . However , because of the impossibility of borrowing in the wholesale financial markets it did not have the liquid funds to pay its current liabilities and to repay depositors , and so it could not pay its debts as they fell due .

On DATE LOC alerted ORG to its liquidity problems and its doubts over the sustainability of its situation . On DATE the ORG , ORG and ORG ( “ the ORG ” ) agreed in principle to provide financial support , as a “ Lender of FAC ” ( “ LOLR ” ) , to allow LOC to maintain liquidity . It was considered that LOC problems constituted a genuine threat to the stability of the financial system , with a risk of serious disturbance in the wider economy .

LOLR Assistance is made under procedures set out in a Memorandum of Understanding between the Tripartite Authorities , which provides :

“ CARDINAL . NORP In exceptional circumstances , there may be a need for an operation which goes beyond the ORG ’s published framework for operations in the money market . Such a support operation is expected to happen very rarely and would normally only be undertaken in the case of a genuine threat to the stability of the financial system to avoid a serious disturbance in the GPE economy . If the ORG or the ORG identified a situation where such a support operation might become necessary , they would immediately inform the other authorities and invoke the co - ordination framework outlined in paragraph CARDINAL below . Ultimate responsibility for authorisation of support operations in exceptional circumstances rests with the Chancellor . Thereafter they would keep the ORG informed about the developing situation , as far as circumstances allowed .

In any such exceptional circumstances , the authorities’ main aim would be to reduce the risk of a serious problem causing wider financial or economic disruption . In acting to do this , they would seek to minimise both moral hazard in the private sector and financial risk to the taxpayer arising from any support operation . ”

The principles on which ORG is provided by ORG were further explained in a lecture given at ORG in DATE by the then Governor of the ORG . In particular , he underlined that PERSON is designed not to protect the individual bank or its shareholders , but to safeguard the financial system as a whole from contagion , thereby preventing damage to the wider economy .

On DATE the ORG broadcast leaked information about the bank ’s liquidity problems which , over DATE , led depositors to withdraw ORG CARDINAL , PERCENT of LOC retail deposits .

On DATE the Tripartite Authorities authorised ORG to provide LOLR support , in the form of a secured loan at a premium rate of interest . On DATE the Chancellor of the ORG announced that ORG would guarantee the safety of all existing deposits in LOC . By DATE the loan provided by ORG was virtually exhausted . To prevent the company from collapsing , a further loan was put in place , which was repayable on demand , again at a premium rate of interest and secured against all assets of the company .

The Government had duly informed ORG of the measures it had taken in relation to LOC . On DATE the ORG issued a decision . The Commission concluded that the measures taken by the ORG DATE and those announced on DATE constituted non - notified ORG aid pursuant to Article CARDINAL(CARDINAL ) of the LAW establishing ORG . However , the measures were compatible with ORG as rescue aid pursuant to LAW , and the ORG raised no objection to them . Nonetheless , it informed the Government that :

“ ORG expects your authorities to respect their commitment to communicate to the Commission , not DATE , a credible and substantiated restructuring plan or a liquidation plan or a proof that the aid measures granted have been repaid in full and that the guarantees have been terminated . ”

On DATE the ORG announced that the preference of ORG was to find a private sector solution for LOC . However , if no suitable private sector solution could be found , the Government would bring forward legislation which would empower the ORG to take LOC into temporary public ownership , since it was not considered that it would be in the public interest to allow the bank to go into administration . If LOC were taken into public ownership , the legislation would provide for the assessment by an independent valuer of compensation payable to the former shareholders . The principles for assessing compensation , which would be set out in the legislation brought forward , would reflect :

“ the principle that the Government should not be required to compensate shareholders for value which is dependent on ORG support and the fact that public sector ownership would be an alternative to an administration of the company . Accordingly , the compensation would be assessed by the valuer on the basis , among other things that all financial assistance to LOC from ORG or ORG ( including ORG existing guarantee arrangements ) had been withdrawn and no other financial assistance ( apart from ORG assistance on its usual terms through standing facilities or open market operations ) were made available by them to LOC . ”

By DATE there were CARDINAL private sector proposals for the future of LOC . However , both involved the continuation of public financial support to the company , and the Government did not consider that either would deliver sufficient value for money for the taxpayer . The Chancellor of the Exchequer therefore announced that legislation would be brought forward to take LOC into a period of temporary public ownership .

The power to nationalise LOC was conferred on the Government by ORG Act DATE ( “ the CARDINAL Act ” ) , which was passed into law on DATE . The nationalisation of the company was effected by the LOC plc Transfer Order CARDINAL , which was made on the same date and came into force on DATE . It transferred the shares in the company to the ORG Solicitor as nominee of the ORG at the beginning of DATE .

NORP The total amount lent by ORG to LOC as at DATE was MONEY . In addition , the ORG had assumed contingent liability under guarantees of MONEY . As at DATE , GBP CARDINAL of the loans remained outstanding .

NORP Immediately before nationalisation , the market price of LOC shares was MONEY , giving a market capitalisation of MONEY .

The statutory instrument making provision for the determination of the compensation payable to the former shareholders of LOC was the LOC plc Compensation Scheme Order DATE ( “ the Compensation Scheme Order ” : see paragraph CARDINAL below ) , made on DATE . It required the independent valuer , when calculating the amount of compensation to be paid by the ORG , to assume that LOC was unable to continue as a going concern and was in administration .

On DATE , ORG informed GPE that it had decided to initiate the procedure laid down in LAW ) of LAW in relation to ORG aid potentially incompatible with the common market . However , it did not consider that the proposed compensation scheme was incompatible , for the following reasons :

“ The decision of DATE already established that LOC is a firm in difficulty . Its situation has not improved since then . In particular , if all the rescue aid measures were withdrawn , the firm would immediately exit the market . ...

The ORG has accordingly decided that the measures implemented on DATE are compatible with LAW and that if the shareholders are only compensated on the basis of an independent valuation of the company without any ORG support , the purchase of the shares from existing shareholders does not constitute ORG aid . ”

On DATE the PERSON wrote to the former shareholders informing them that his provisional view was that , applying the statutory assumptions , there would be no residual value in the company and therefore no compensation would be payable .

The applicants challenged the assumptions required by LAW by way of judicial review proceedings in ORG . They contended that , contrary to LAW , the assumptions imposed on the PERSON failed to strike a fair balance ; gave rise to procedural unfairness , since the PERSON could not take into account all relevant facts ; and wrongly prevented the regulatory failures of the ORG from being taken into account in the assessment of compensation .

ORG dismissed the proceedings on CARDINAL DATE ( [ DATE ] EWHC CARDINAL ( Admin ) ) . It took the view that the statutory assumptions imposed on the PERSON reflected the fact that , but for the support provided by ORG , LOC would have been unable to pay its debts as they fell due and would have had to cease carrying on business . The court further held that its function was one of review : to determine whether the ORG had exceeded its margin of appreciation . It held that the margin of appreciation in this case was narrower than it had been in the cases of PERSON and Others v. GPE , DATE , Series A no . CARDINAL ; PERSON and Others v. GPE , DATE , Series A no . CARDINAL ; and GPE and Others v. GPE , DATE , Series A no . CARDINAL , since the decision to nationalise LOC was made on narrower economic grounds , by comparing the financial benefits to the taxpayer of nationalisation with the alternatives available . However , following GPE and Others v. GPE , DATE , Reports of Judgments and Decisions DATE , the court considered that the relevant test was whether the determination under challenge was “ manifestly without reasonable foundation ” , and it did not consider that the Compensation Scheme could be so condemned . Moreover , there had been no procedural unfairness and LOC problems were due to the failures of its managers , rather than the ORG ’s lack of regulation .

NORP The applicants’ appeal to ORG was dismissed on DATE ( [ DATE ] EWCA Civ CARDINAL ) . ORG held that the Government support accorded to LOC from DATE had constituted a “ Lending of FAC ” ( “ LOLR ” ) operation , carried out in the context of macro - economic policy , strictly and exclusively for the protection of the banking system as a whole and not in the interests of LOC or its shareholders . As with all PERSON support , it was always intended to be a short - term operation . The decision to take the company into public ownership was a strategic exercise of Government policy , intended to preserve for the sake of the national economy the benefits of the PERSON operation at the least possible cost to the taxpayer . In these circumstances , the margin of appreciation available to the ORG had to be wide . The court should only interfere if it were to conclude that the ORG ’s judgment as to what was in the public interest was manifestly without reasonable foundation , which was not the case here . LOLR assistance would not have been provided if support had been available on the market and nationalisation was only carried out because no commercial entity was prepared to acquire LOC except on terms that the ORG continued to provide support and carried the risk of default . There was no evidence to support the applicant ’s allegation that the Government were motivated by profit . The purpose of the statutory assumptions was to put the shareholders in the position they would have occupied had no PERSON support been provided . If the assumptions produced a nil value for the shares , this was only because the business was shown to be worthless without the support put in by the Government and there was nothing in the assumptions to prevent the PERSON from attaching a premium value to LOC loan book and other assets .

The applicants were refused further permission to appeal by ORG on DATE .

The DATE Act conferred power on the ORG to make an order transferring securities issued by an authorised GPE deposittaker to the ORG ’s nominee . By virtue of section CARDINAL(CARDINAL ) read with section CARDINAL(CARDINAL ) of the CARDINAL Act , the power was exercisable by the ORG if it considered it desirable to do so for either or both of the following purposes :

“ ( a ) maintaining the stability of the GPE financial system in circumstances where the ORG consider that there would be a serious threat to its stability if the order were not made ;

( b ) protecting the public interest in circumstances where financial assistance has been provided by the ORG to the deposit - taker for the purpose of maintaining the stability of the GPE financial system . ”

Section CARDINAL required the ORG to make a scheme for determining the amount of any compensation payable by the ORG to persons who held the securities immediately before they were transferred . Section CARDINAL(CARDINAL ) read as follows :

“ ( CARDINAL ) In determining the amount of any compensation payable by the ORG by virtue of any provision in an order under this section , it must be assumed DATE

( a ) that all financial assistance provided by ORG or the ORG to the deposit - taker in question has been withdrawn ( whether by the making of a demand for repayment or otherwise ) , and

( b ) that no financial assistance would in future be provided by ORG or the ORG to the deposit - taker in question ( apart from ordinary market assistance offered by ORG subject to its usual terms ) . ”

“ Ordinary market assistance ” was defined in subsection ( CARDINAL)(b ) and did not include the financial support that had been provided to LOC since DATE .

NORP The nationalisation of LOC was effected by the LOC plc Transfer Order CARDINAL made under LAW . It came into force on DATE , and transferred all the shares in LOC to the ORG Solicitor as nominee of the ORG with effect from the beginning of that date .

The Compensation Scheme Order DATE gave effect to the compensation scheme set out in the Schedule to the Order ( “ the Compensation Scheme ” ) . It required :

“ The amount of compensation payable to a person [ to ] be an amount equal to the value immediately before the transfer time of all shares in LOC held immediately before the transfer time by that person ” .

The Compensation Scheme contained provision for the appointment of an independent valuer to assess compensation and for any person dissatisfied with his determination of compensation to refer the matter to ORG .

Paragraph CARDINAL of the Compensation Scheme provided :

“ CARDINAL . In determining the amount of any compensation payable by the ORG to any person in accordance with CARDINAL , it must be assumed ( in addition to the assumptions required to be made by LAW ( compensation etc . for securities transferred etc . ) ) that LOC —

( a ) is unable to continue as a going concern ; and

( b ) is in administration . ”


Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 6-1;Not necessary to examine Art. 8;Not necessary to examine P4-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

On DATE ORG ( ORG ) made an insolvency order in respect of the company set up by Mr PERSON and his parents and also declared them personally bankrupt .

On DATE respectively PERSON and the PERSON company , claiming to be creditors of the bankrupts , instituted separate proceedings before the ORG bankruptcy judge ( giudice delegato ) contesting the statement of liabilities drawn up with a view to settling the company 's debts . The judge set down hearings to enter appearances on DATE and CARDINAL DATE respectively . On DATE the liquidator applied to the judge for leave to join the second proceedings . His application was allowed on CARDINAL DATE .

The preparatory phases of the CARDINAL cases continued until CARDINAL and DATE . During the intervening period QUANTITY hearings were held in CARDINAL case and CARDINAL in the other ; they were almost all adjourned at the request of the parties or by the judge of his own motion .

On DATE that has not been specified the CARDINAL sets of proceedings were stayed sine die because the judge had been transferred to another post . Proceedings were reopened on DATE and DATE .

On CARDINAL DATE ORG struck the first case out of its list because the parties had failed to appear . According to information supplied by the applicants ' lawyer , the plaintiff had decided not to pursue his case . As regards the second case , on DATE the parties communicated their final submissions and the judge set down the trial hearing for DATE , on which date ORG allowed the LOC company 's application . The text of the judgment was deposited at the registry on DATE . II . Relevant domestic law

The relevant provisions of LAW no . CARDINAL of DATE read as follows :

Section CARDINAL " An appeal shall lie against the decisions of the bankruptcy judge ... to the district court within DATE of their adoption , and may be lodged by the liquidator , by the bankrupt , by the creditors ' committee or by any other person with an interest . The district court shall deliberate in private session and give a reasoned decision . The appeal shall not have suspensive effect in relation to the impugned decision . "

Section CARDINAL " An appeal shall lie against measures taken by the liquidator . Such appeals may be lodged by the bankrupt , or any other person with an interest , with the bankruptcy judge , who shall give a reasoned decision . An appeal against that decision must be lodged within DATE with the district court . That court shall give a reasoned decision after hearing the liquidator and the appellant . "

Section CARDINAL " Correspondence addressed to the bankrupt must be passed to the liquidator , who shall be empowered to retain correspondence concerning property interests . The liquidator has a duty of confidentiality as regards the content of the correspondence that does not relate to such interests . "

Section DATE " The bankrupt may not leave his place of residence without the authorisation of the bankruptcy judge and must report to that judge , to the liquidator and to the creditors ' committee each time that he is duly summoned , except where he is unable to appear on legitimate grounds and the judge gives him leave to send a representative . If the bankrupt fails to comply with a summons , the judge may order that he be brought by the police . "