Preliminary objection rejected (non-exhaustion);No violation of Art. 6-1;No violation of Art. 6-2;Violation of Art. 6-3-c;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

Mr PERSON , a NORP national who was born in GPE in DATE , was unemployed and living at Aulnay - sous- PERSON ( GPE ) at the material time .

On DATE he was arrested in GPE with CARDINAL other people from GPE , GPE or GPE , Mr PERSON , Mr ORG , Mr PERSON and Mr PERSON . He was at the wheel of a car towards which Mr PERSON and Mr Fu were walking ; they had just emerged from a hotel and were carrying CARDINAL bags containing QUANTITY of heroin base and QUANTITY of almost pure heroin , together with a pair of scales , CARDINAL pan of which bore traces of heroin . CARDINAL other people , Mr PERSON and Mr PERSON , were arrested after weapons and QUANTITY of caffeine were discovered by police while searching a flat visited by the applicant .

Since DATE officers of ORG had been carrying out surveillance and shadowing operations ; they had got wind of preparations for heroin trafficking in relation to individuals from GPE .

On DATE an investigating judge charged the applicant with an offence under the drugs legislation and remanded him in custody . The applicant was released under judicial supervision on DATE .

In an order of CARDINAL DATE the investigating judge committed the applicant and the CARDINAL others mentioned above for trial on the charge that they had " conspired in GPE during DATE , in particular DATE , to produce , possess and supply drugs , namely heroin " .

At the trial on CARDINAL DATE the Director - General of ORG asked the court to

" Find PERSON , PERSON , GPE , PERSON , PERSON , PERSON and PERSON guilty of having committed within the NORP customs territory from DATE to CARDINAL DATE as persons in possession or having an interest in customs evasion , the class CARDINAL customs offence of smuggling prohibited goods by means of a self - propelled vehicle and in a group of CARDINAL individuals ;

Sentence them jointly and severally on this charge to pay the customs authorities :

( a ) a sum of CARDINAL ( QUANTITY in lieu of forfeiture of the goods , which will be destroyed ( Art . CARDINAL of the ORG [ ORG Code ] ) ;

( b ) a fine of CARDINAL ( QUANTITY , being the value of the smuggled goods ( Art . CARDINAL of the ORG ) ;

Pass the maximum sentence of imprisonment provided for in the event of non - payment ;

Order that the defendants shall be held in custody , within the limit of the term of that imprisonment , until such time as the customs penalties have been paid ( new LAW ) ;

The above measures being pursuant to ORG CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL of LAW , LAW DATE made by the Minister for the ORG ;

Without prejudice to the sentence of imprisonment provided for in LAW and which the public prosecutor is asked to apply for pursuant to LAW . "

ORG submissions included the following details :

" The GPE statements and the police surveillance disclosed the following :

PERSON and ORG left GPE together by air on DATE carrying a suitcase with a false bottom containing the heroin subsequently seized . When they arrived in GPE , PERSON continued his journey by air to GPE and instructed GPE to bring the suitcase by rail in order to avoid the thorough checks made at airports in GPE .

In GPE PERSON accompanied PERSON to make a number of purchases : the receptacle which would have served to mix the heroin and the caffeine [ and ] the secateurs for cutting open the hidden compartment in the suitcase .

The heroin subsequently seized was to be transported in PERSON ’s motor vehicle , and PERSON was to drive with it to the home of PERSON and PERSON , where the QUANTITY of caffeine were seized .

It has therefore been established that the CARDINAL defendants constituted a group of individuals ( whether or not all of them were in possession of the smuggled goods ) formed with a view to importing heroin base , converting it , possessing it , transporting it and mixing it with caffeine in order to produce a commodity whose street value would have been trebled by virtue of this blending .

AS TO THE LAW

The goods in question are mentioned by name in the Order of CARDINAL DATE made by the Minister for the ORG , which lists the substances to which LAW is to apply .

Those who possess or transport goods specially designated in orders made by the Minister for ORG and Finance must , when first asked to do so by customs officers , produce either receipts certifying that the goods have been lawfully imported or invoices , manufacture notes or any other proof of origin from individuals or companies lawfully established within the customs territory .

In the absence of any proof of origin as indicated above , the goods in question are deemed to have been imported unlawfully ( Art . CARDINAL of the ORG ) .

This constitutes the offence of unlawfully importing prohibited goods , namely QUANTITY of heroin base or almost pure heroin with a value of CARDINAL F , punishable under ORG CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL of the ORG Code ; with the following aggravating circumstances :

Heroin is the most strictly prohibited commodity in customs terms and the most harmful under health legislation ; CARDINAL . ... the offence was committed by a group of CARDINAL or more individuals ( Art . CARDINAL of the ORG ) ;

... the goods were to be transported by a self- propelled vehicle ( Art . CARDINAL of the ORG ) .

SPECIAL FEATURES OF CUSTOMS LAW

Art . CARDINAL of the ORG : in any proceedings concerning a seizure of goods , it shall be for the person whose goods have been seized to prove that he has not committed an offence .

The defendants can not avoid their criminal liability by relying on their good faith , since the latter is of absolutely no effect in customs law .

Art . CARDINAL of the ORG : any attempted offence is punishable in the same way as the offence itself . Delivery was going to be taken of the smuggled goods in PERSON ’s vehicle by PERSON , Ngo and PERSON .

LIABILITY

The offence described above is imputable to the above - mentioned persons as being in possession - in possession in law - or having an interest in customs evasion .

A person in possession of smuggled goods is deemed responsible for customs evasion ( Art . CARDINAL para . CARDINAL of the ORG ) .

By Art . CARDINAL of the ORG ,

Anyone who as a person having an interest has taken part in any way in a smuggling offence or an offence of undeclared importation or exportation is liable to the same penalties as anyone committing the offence and , furthermore , to the loss of rights provided for in LAW .

The following are deemed to have an interest :

( a ) owners and members of business undertakings , insurers , insurance policyholders , moneylenders , owners of goods and in general anyone who has a direct interest in customs evasion ;

( b ) anyone who has contributed in any way to a series of acts committed by a number of individuals acting in concert , in accordance with a customs - evasion plan drawn up in order to achieve the jointly pursued purpose ;

( c ) anyone who has knowingly concealed the activities of smugglers or attempted to help them evade punishment or has purchased or possessed , even outside the customs zone , goods obtained by means of a smuggling offence or an offence of undeclared importation .

An interest in customs evasion can not be imputed to anyone who has acted from necessity or as a result of an unavoidable mistake .

Where CARDINAL person is found guilty of a single customs - evasion offence , they are jointly and severally liable for the penalties , both as regards pecuniary penalties in lieu of forfeiture and as regards fines and costs ( Art . CARDINAL para . CARDINAL of the ORG ) .

The owners of smuggled goods , anyone who has undertaken to import or export them , anyone with an interest in the customs evasion , accomplices and adherents are all jointly and severally liable and are subject to imprisonment for non - payment of fines , sums in lieu of forfeiture and costs ( Art . CARDINAL of the ORG ) .

On DATE the GPE tribunal de grande instance ( CARDINALth ORG ) acquitted the applicant , PERSON and PERSON on all the charges against them for lack of sufficient evidence .

As regards the proceedings in respect of the ordinary criminal offence ( see paragraph CARDINAL above ) , it held :

" ... there is no evidence that PERSON , who was involved only on an ad hoc basis , knowingly agreed to transport the goods and those in possession of them in his car .

As regards the proceedings in respect of the customs offence ( see paragraph CARDINAL above ) , it said :

As far as the customs offence is concerned , no physical act of aiding and abetting or of having an interest in the customs evasion can be proved against PERSON , PERSON and PERSON .

It should be noted that the police intervened before they had been able to do anything to take possession of the prohibited goods . Accordingly , the question of any good faith on their part does not even arise .

The other defendants , however , were sentenced to imprisonment for terms ranging from DATE .

The Director - General of ORG appealed against the decision to acquit the applicant , PERSON and PERSON of the customs offence . For the hearing on DATE he made the following submissions :

" As regards PERSON , it should be stated that he has always claimed that he ‘ knew nothing about the operation in which he took ORG . He can not be acquitted on this account , since intention does not have to be taken into consideration by the court for the customs offence to be made out ( Art . CARDINAL of the ORG ) .

It was PERSON who drove the motor vehicle in which PERSON and then GPE had travelled . On several occasions the police saw them going to shops to buy hydrochloric acid - which is used to turn heroin base into soluble heroin .

Again driven by PERSON , the CARDINAL men went to PERSON ’s hotel . PERSON and PERSON were arrested as they were about to put the heroin base into PERSON ’s vehicle .

It is thus established that PERSON was going to be in possession of QUANTITY grams of heroin base . For a reason beyond his control , the drug did not in the end come into his possession .

Furthermore , the fact that PERSON drove in his own vehicle CARDINAL traffickers who firstly went to buy an ingredient of the smuggled goods , the hydrochloric acid , and secondly were about to take delivery of a strictly prohibited commodity , the heroin base , warrants the assertion that he had an interest in the customs evasion .

In short , it has clearly been established that PERSON , PERSON and PERSON had indeed formed a group of individuals together with the CARDINAL others with a view to possessing , transporting or attempting to transport consumable heroin and to convert it by attempting to add hydrochloric acid to heroin base and thereafter adding caffeine to the heroin hydrochloride in order to increase both the weight of the goods to be supplied on the illicit market and , above all , the profit to be derived from the trafficking .

In respect of the CARDINAL defendants , the court below thus disregarded Articles CARDINAL , CARDINAL , CARDINAL and CARDINAL of the Customs Code .

Extenuating circumstances :

Pursuant to LAW , the court below was , however , entitled to find that there were extenuating circumstances in respect of PERSON , PERSON and PERSON and accordingly to reduce the sum to be paid in lieu of forfeiture and the fine to CARDINAL of the value of the smuggled goods ( CARDINAL * CARDINAL = CARDINAL F ) and not make an order for the forfeiture of PERSON ’s vehicle .

Special features of customs law

Offences under the drugs legislation are inseparable from smuggling offences .

ORG offences , however , are strict - liability offences provided for and punishable under a body of law separate from the ordinary law , and in particular under : CARDINAL para . CARDINAL : good faith is of absolutely no effect CARDINAL : where goods have been seized , the burden of proving that no offence has been committed is on the person whose goods have been seized CARDINAL : possession CARDINAL : interest in customs evasion

In their written submissions made for the hearing on DATE the CARDINAL counsel for the applicant - Mr Lestourneaud and Mr Pugliesi - Conti - argued in particular that Articles CARDINAL para . CARDINAL , CARDINAL , CARDINAL para . CARDINAL and CARDINAL para . CARDINAL of LAW were " incompatible with the concepts of a fair trial and of presumption of innocence contained in LAW paras . CARDINAL and CARDINAL ( article DATE , article DATE ) of LAW " .

On DATE ORG found the applicant " guilty of having , in GPE and within the customs territory , from DATE to CARDINAL DATE , committed as a person in possession or having an interest in customs evasion , the class CARDINAL customs offence of unlawfully importing prohibited goods by means of a self - propelled vehicle and in a group of CARDINAL individuals " .

He was sentenced to " pay the customs authorities , jointly and severally with PERSON , ORG , PERSON and PERSON :

( a ) a sum of MONEY in lieu of forfeiture of the goods , which [ were to ] be destroyed , and

( b ) a fine of MONEY , being the value of the smuggled goods ,

his personal liability being limited in both cases to the sum of MONEY " .

The judgment contained the following reasons :

" A. As to the defence submissions concerning PERSON

In submissions filed with the ORG , counsel for PERSON sought to have upheld the defendant ’s acquittal and to have dismissed the case put forward by the customs authorities as sole appellant against the defendant , on the ground that Articles CARDINAL - CARDINAL , CARDINAL , CARDINAL and DATE , and CARDINAL of the Customs Code were incompatible with the provisions of Article CARDINAL ( article CARDINAL ) of LAW and LAW signed in GPE on DATE , both of which have been ratified by GPE and embody the principles of a ‘ fair ORG and ‘ the presumption of innocence in criminal PERSON .

This ground does not amount to a preliminary objection , seeing that the conventions prayed in aid do not provide for applications for preliminary rulings to the supervisory bodies set up to implement them .

As it relates to the lawfulness of the prosecution , it must be considered , although it was not raised before any defence on the merits .

The defence submissions do not allege any breach of the rules governing the procedure followed during the judicial investigation or at the trial , but it is argued in them that under the provisions of LAW relied on by the prosecution a person in possession of the goods is deemed responsible for customs evasion , and all those who come within specified categories are deemed to have an interest in customs evasion , in both cases regardless of their good faith or their intention , such that these provisions provide for a presumption of guilt which makes them incompatible with the provisions of LAW and of LAW , which provide that ‘ everyone is entitled to a fair ... hearing’ and that ‘ everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law’ .

It was pointed out that ORG in GPE has held that the presumption of innocence is CARDINAL of the ingredients of a fair trial and that applying provisions which remove the burden of proof from the prosecution puts the defendant at a disadvantage , negates the equality of arms to his detriment , and , ultimately , deprives him of a fair trial .

But while it is true that the customs authorities do not have to prove bad faith on the part of the person in possession of the smuggled goods or of the person having an interest in customs evasion , they must establish the physical fact of possession and show that the defendant in some way took part , as a person having an interest , in an offence of smuggling or of undeclared importation or that he belongs to CARDINAL of the categories of those who are deemed to have a direct interest in customs evasion .

It is the special nature of customs offences , which are complete as soon as the smuggled goods cross the border , that compels the legislature to define them as offences which are made out as soon as the physical acts which disclose their existence have been evidenced on NORP territory .

The special nature of these offences does not , however , deprive the offender of any possibility of raising a defence , seeing that the law provides that a person in possession can exonerate himself by proving force majeure and that an interest in customs evasion can not be imputed to anyone who has acted from necessity or as a result of an unavoidable mistake .

It appears from the evidence in the file that PERSON , who was remanded in custody on DATE and released under judicial supervision on DATE and was acquitted by the court below , was consistently presumed innocent and had every possibility of putting forward the grounds allowed him by the law in order to exonerate himself .

That being so , there is no incompatibility in this case between the impugned provisions and the principles laid down in the conventions relied on , seeing that the customs authorities are prosecuting PERSON for an offence of unlawfully importing strictly prohibited goods , namely QUANTITY of heroin base or almost pure heroin , a commodity whose importation is strictly prohibited on account of its harmfulness to public health and of the damage its consumption causes both to the users’ physical health and to the social order .

In the face of a scourge affecting young people more particularly and which is spreading alarmingly , the impugned provisions of LAW , which were applied in conformity with the rules laid down in LAW , can be seen as the response made within the constitutional framework and the limits of a NORP State ’s sovereignty to offences that are particularly serious and call for appropriate special punishment .

There is accordingly no ground for holding that these provisions are inapplicable .

B. As to PERSON ’s guilt

It is established that on TIME CARDINAL January CARDINAL Ngo , who played an important part in the importation of the heroin , was driven by PERSON in his ORG car to buy hydrochloric acid in various shops to blend the pure heroin brought into GPE by PERSON and PERSON .

PERSON was present in the flat at CARDINAL boulevard de la Chapelle at TIME when the QUANTITY of caffeine were delivered there by an NORP who was said by the other defendants to be the head of the trafficking network .

He agreed to drive PERSON and GPE to their rendezvous with PERSON and PERSON .

At the time he was arrested , he was waiting for PERSON to get into his car so that he could drive him to PERSON ’s flat in the boulevard de la Chapelle .

He was therefore on the point of being in possession of the smuggled goods , which only the intervention of the police prevented from being placed in his vehicle .

The customs authorities therefore rightly argued that the attempt is regarded in the same way as the offence itself , that it was for reasons beyond his control that PERSON did not physically come into possession of the heroin that was going to be placed in his car and that the fact of his having driven in his own vehicle CARDINAL traffickers who were on the point of taking delivery of the prohibited goods warranted the assertion that he had an interest in customs evasion .

He did not claim to have acted from necessity , and the circumstances in which he was implicated in the operation and arrested do not allow him to maintain that he acted as a result of an unavoidable mistake . "

On DATE that ORG gave its judgment , Mr PERSON appealed to ORG . PERSON wrote to the Chairman of the PERSON d’État and ORG on DATE applying for counsel to be officially assigned as his client was not in a position to meet further costs . The principles which the applicant intended to assert before ORG were , he said , complex and the advice of a member of ORG was essential for following the proceedings . He reiterated this request in a letter of CARDINAL DATE .

On DATE the Chairman of the Bar replied as follows :

" Legal aid is not available to convicted persons , who are infinitely numerous , in criminal cases which come before ORG .

In certain exceptional cases , where the heaviest sentences are at stake , I assign CARDINAL of my colleagues free of charge for the purposes of studying the file .

But Mr PERSON does not come into this category and I can not grant his request . "

On DATE the applicant sent a registered letter to the registry of ORG ; he indicated that he was filing , as pleadings , a copy of the appeal submissions lodged on DATE by his CARDINAL counsel ( see paragraph CARDINAL above ) .

ORG ) dismissed the appeal on CARDINAL DATE for the following reasons :

" Having regard to the personal application , which was properly produced , and to the pleadings in support ;

The personal application does not in itself raise any point of law for determination and does not allege a breach of any provision . Accordingly , since it does not comply with the requirements of LAW [ of Criminal Procedure ] , it is not admissible .

ORG judgment , moreover , contains no formal defect . "

In GPE customs offences are criminal offences with various special features .

The Customs Code essentially prohibits smuggling ( Articles CARDINAL and CARDINAL ) and undeclared importation or exportation ( Articles CARDINAL - CARDINAL ) . This case is concerned solely with smuggling . Smuggling is defined as " any importation or exportation effected outside official customs premises and any infringement of the statutory provisions or regulations concerning the possession and transport of goods within the customs territory " ( Article CARDINAL para . CARDINAL ) , for example - but not exclusively - if importation of the goods is prohibited ( Article CARDINAL para . CARDINAL , to be read in conjunction with LAW ) .

The following are the main provisions of LAW that are referred to in the instant case :

" The courts shall not acquit offenders for lack of intent . "

This paragraph was repealed by Law no . CARDINAL - CARDINAL of DATE , which changed tax and customs procedure , but the PERSON did not apply to the instant case .

" In any proceedings concerning a seizure of goods , the burden of proving that no offence has been committed shall be on the person whose goods have been seized . "

" A person in possession of smuggled goods shall be deemed responsible for customs evasion . "

Taken literally , this provision appears to create an irrebuttable presumption . The courts have , however , mitigated its strictness . Thus ORG now upholds the unfettered power of courts of trial and of appeal to assess the " evidence adduced by the parties before them " ( see , for example , the PERSON judgment of DATE , ORG . crim . ) no . CARDINAL , p. CARDINAL ) and recognises that an accused may exonerate himself by establishing " a case of force majeure " resulting " from an event responsibility for which is not attributable " to him and which " it was absolutely impossible [ for him ] to avoid " , such as " the absolute impossibility ... of knowing the contents of [ a ] package " ( see , for example , ORG and PERSON judgment of DATE , ORG , DATE , jurisprudence , pp . CARDINAL - CARDINAL , and the Salabiaku judgment of CARDINAL DATE , extracts from which are reproduced in the Series A volume no . ORG , p. CARDINAL , para . CARDINAL ) .

" CARDINAL . Anyone who as a person having an interest has taken part in any way in a smuggling offence or an offence of undeclared importation or exportation shall be liable to the same penalties as anyone committing the offence and , furthermore , to the loss of rights provided for in Article CARDINAL hereinafter .

The following shall be deemed to have an interest :

( a ) owners and members of business undertakings , insurers , insurance policyholders , moneylenders , owners of goods and in general anyone who has a direct interest in customs evasion ;

An interest in customs evasion can not be imputed to anyone who has acted from necessity or as a result of unavoidable mistake . "

Under NORP case - law , having an interest is distinct from the criminal offence of aiding and abetting as defined by Articles DATE and CARDINAL of LAW , to which LAW refers ( DATE , ORG . crim . no . CARDINAL ) .

" Unavoidable mistake " is to be understood as a mistake as to some physical fact , made in circumstances precluding any fault or negligence on the part of the person making it , such that the mistake could not be avoided , even after checks had been made ; it is not a simple matter of good faith ( DATE , ORG . crim . no . CARDINAL ) . In a judgment of CARDINAL DATE ORG held : " Article CARDINAL para . CARDINAL of LAW requires , in order for a person to be found guilty of having an interest in customs evasion committed by third parties , that the court should find that the defendant knowingly contributed to an unlawful operation which might result in customs evasion , even if he was ignorant of the actual arrangements " ( Bull . crim . no . CARDINAL ) .

" Any attempted customs offence shall be regarded in the same way as the offence itself . "

Legal representation is not compulsory for applications to ORG in criminal cases . A convicted defendant can lodge an appeal on points of law himself and set out his grounds of appeal in writing ( Articles CARDINAL , CARDINAL and CARDINAL of the Code of Criminal Procedure ) . Only members of the ORG d’État and ORG , however , have the right of audience .

For DATE there were no provisions to deal with the problem of legal aid for persons whose means were insufficient to ensure the exercise of their rights in the criminal courts .

Section CARDINAL of Law no . CARDINAL of DATE on legal aid and payment of officially assigned or appointed counsel provided merely :

" Legal aid shall be granted for both contentious and non - contentious proceedings .

It shall be available for :

Any proceedings brought either before an ordinary court other than a criminal court or before the ORG d’État , the administrative courts of appeal , the administrative courts or ORG ;

Any action in courts of trial or of appeal concerning a person ’s civil liability ;

Any action brought by a civil party to criminal proceedings before investigating judges or courts and trial or appeal courts ;

Any protective measure ;

Any procedure for enforcement of either a judicial decision or any other legal transaction . "

According to the ORG d’État and ORG , the situation before the DATE reform ( see paragraph CARDINAL below ) was as follows :

In the absence of any provisions , it has always been the tradition of the NORP bars ... to ensure that persons unable to meet the costs of their defence are defended by counsel assigned officially by the Chairman of the Bar . Lack of means is a matter of presumption for these purposes and there is no kind of means test .

If it becomes apparent that a person to whom counsel has been assigned officially for proceedings in courts of trial or of appeal , generally at his own request but sometimes , to ensure the proper conduct of the proceedings , at the request of an investigating judge or of the presiding judge of the court ( at the ORG , for example ) , has means of his own , the official assignment ( free of charge ) may , at his request , be converted into an official appointment , the lawyer initially assigned then having the right to charge fees , under the supervision of the chairman of the bar .

Counsel at the ORG d’État and ORG have similarly always contributed to the provision of free representation in criminal cases ; but , given the small size of the ORG d’État and ORG and the ‘ extraordinary’ nature of an appeal to ORG , it was necessary to adapt the procedure .

This adaptation was twofold in nature .

Firstly , the Chairman of the ORG d’État and ORG never officially assigned a colleague directly . Where it was possible for an official assignment to be made , he would appoint a member of the Bar to study the file ; the latter would report to the Chairman , and if he had identified a ground of appeal , the appointment to study the file would be informally converted into an official assignment .

This preliminary study corresponded to the preliminary study made by ORG , and the same resources were available .

Where a ground of appeal could be set out at length , the appointed member of the Bar would produce pleadings on a voluntary basis .

Secondly , counsel was not automatically appointed following an application .

A study of the file was ordered as of right where there had been a conviction by an assize court and in the event of a case being remitted to an assize court or of a prison sentence being passed by a criminal court where the applicant was in custody pending trial . Study of the file was also ordered in the cases of those convicted by a criminal court of first instance or appeal who were not in custody but whose sentence was above a certain level , the level apparently having varied over time .

In all cases , if the Chairman indicated that he was unable to appoint a colleague , he qualified this by saying that he would have the file studied by CARDINAL of his colleagues if his attention was drawn to a point of law that could be submitted for review by ORG . Study of the file was in fact ordered fairly generously once counsel before a court of trial or of appeal had drawn the attention of the Chairman of the Bar to a specific point .

It is to be noted that such precautions were necessary , not only because of the small size of the ORG d’État and ORG but also because appeals to ORG in criminal cases ( except in respect of judgments in associated civil - party proceedings ) have a suspensive effect . It was important that the hearing of appeals that could not be sustained should not be systematically delayed on the ground that the file was being officially studied ( or that counsel had been officially assigned to it ) .

It must not be overlooked that when a file is allocated to counsel , he is given a deadline . Moreover , when pleadings are produced , ORG is obliged to give a reasoned judgment , after the case has been examined by a reporting judge ; whereas when an appeal is not supported in that way , the case is automatically entered in a list known as the ‘ formal list’ because ORG essentially considers only whether the impugned judgment is free from any formal defect ; in actual fact , it also satisfies itself that the statutory maximum sentence has not been exceeded .

In DATE the Chairman of the ORG d’État and ORG who had then been elected became concerned about the increasing number of applications made to him for official assignment of counsel and the number of official appointments he had to make for study of files in accordance with the foregoing criteria ; the number of such appointments had indeed increased from CARDINAL in DATE to CARDINAL in DATE .

He felt it his duty , on his own initiative , to make a slight alteration if not to the actual criteria , at least to the letter previously sent to those applying for an official assignment of counsel or to lawyers applying for it on their behalf . In these replies he ceased to mention automatically that counsel would be officially instructed to study the file if a point of law was brought to his attention ; and he also changed the criterion for an official appointment , in respect of applicants who were not in custody , to a DATE prison sentence ( instead , apparently , of DATE previously ) .

When a point of law was notified to him , he did in fact order an official study of the file , as in the past ; the same applied when it was justified by the applicant ’s psychological state .

These measures reduced the number of appointments made for study of files from CARDINAL in DATE to CARDINAL in DATE .

The Chairman who was elected in DATE took a decision to order study of all files without any distinction when an application for official assignment of counsel was made to him ; the number of files studied rose from CARDINAL in DATE to CARDINAL in DATE , and reached CARDINAL in DATE , falling back to CARDINAL in DATE .

It is now provided , in PERSON no . CARDINAL of DATE on legal aid :

" Legal aid shall be granted to plaintiffs or defendants in contentious or non - contentious proceedings before any court .

It may be granted for all or part of the proceedings .

It may also be granted in respect of the execution of a judicial decision or of any other authority to execute . "

Following an agreement between ORG and the ORG d’État and ORG , a system of legal aid in criminal cases has been set up .


Preliminary objection dismissed (victim);Violation of P4-2;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;Françoise Tulkens;Khanlar Hajiyev;Loukis Loucaides

The applicant was born in DATE and at the material time lived in LOC . He now lives in GPE .

In DATE the applicant started working for a construction and design agency , “ Raduga ” ( ORG “ PERSON ) , a ORG corporation that developed rocket and space devices . He signed an undertaking not to disclose classified information .

On DATE the applicant signed a new undertaking , the relevant part of which reads as follows :

“ I , [ the applicant ] , undertake :

( a ) not to disclose information containing ORG and professional secrets that are entrusted to me or that I learn by virtue of my service ( work ) duties ...

( c ) not to visit embassies , missions , consulates or other representative offices of foreign GPE , and not to contact DATE directly or through others – foreigners without the consent of the management of the agency I work for or the relevant NORP authorities ...

I have been informed of the prohibition on travel abroad , except as permitted by relevant laws and regulations ... ”

On DATE the applicant signed a new undertaking which read as follows :

“ I , [ the applicant ] , on assuming my work duties at the GPE design agency , undertake :

( a ) not to disclose information containing ORG and professional secrets entrusted to me or coming to my attention by virtue of my service ( work ) duties ;

( b ) to abide by the applicable requirements laid down in the orders , instructions and regulations concerning the secrecy of the studies conducted , of which I have taken cognisance ;

( c ) to notify the department of the enterprise responsible for secrecy arrangements or the competent authorities of any attempts by outsiders to obtain secret information from me ;

( d ) to inform the human resources department in a comprehensive and timely fashion of any change in my personal circumstances ; and to inform the department responsible for secrecy arrangements of any contacts with my relatives permanently living abroad or planning to take up permanent residence abroad , or of any non - professional contacts with foreigners .

In the event of my dismissal I undertake to abide strictly by requirements ( a ) and ( c ) above ... ”

On DATE the applicant resigned .

NORP In DATE the applicant ’s father , who lived in GPE , fell ill . Wishing to visit his father , the applicant applied to ORG of PERSON for a travel passport , the identity document which entitles NORP citizens to leave the country and travel abroad .

On DATE the Head of ORG refused the applicant ’s request . The entire text of the decision reads as follows :

“ As there exist grounds for a temporary restriction on your right to leave GPE as set out in section CARDINAL of the PERSON on the procedure for entering and leaving GPE , your application for a travel passport has been declined until DATE further to a recommendation by the ORG design agency of DATE ( registration number CARDINAL ) . ”

The applicant contested the refusal before ORG for the examination of NORP ORG complaints in connection with restrictions on their right to leave GPE ( “ the Commission ” ) . On DATE the Commission informed the applicant that it had unanimously upheld the imposition of a DATE restriction . The letter did not indicate the reasons for the decision .

The applicant appealed against the decision of the Commission to ORG .

On DATE ORG gave judgment . It found that on DATE , CARDINAL DATE and DATE the applicant had signed undertakings not to disclose ORG secrets ; the DATE undertaking also contained a clause restricting the applicant ’s right to leave the country . Having examined a report on the applicant ’s knowledge of ORG secrets of DATE , drawn up by the applicant ’s former employer and confirmed by ORG and ORG of ORG at the request of ORG , the court found as follows :

“ According to the report ... [ the applicant ] in his work used workbooks bearing inventory nos . DATE that contained extracts from top secret documents ( nos . ... ) . In respect of some inventory numbers , requests were sent to the design enterprises [ in order ] to verify whether the information contained therein was still sensitive . However , no response was received . Moreover , the ORG questioned a witness , PERSON , the Deputy General Director responsible for the regime and for security at the ORG agency , who confirmed that the information contained in the documents that had been drawn up in the ORG agency had retained its top secret classification and was still sensitive ... As the witness PERSON clarified to the ORG , there are no grounds for changing the secrecy classification of this information ... ”

On these grounds the court determined that the restriction on the applicant ’s right to leave GPE until DATE was lawful and justified .

On DATE ORG of GPE upheld ORG judgment , finding that it had been properly justified and reasoned .

The restriction on the applicant ’s right to leave the country expired on DATE .

On DATE the applicant was issued with a travel passport and subsequently took up residence in GPE .

LAW provided that GPE citizens could only leave the country with a travel passport issued by a competent body ( section CARDINAL ) . A travel passport could be refused , in particular , if the person had knowledge of ORG secrets or was subject to other contractual obligations prohibiting his departure from the GPE ( section CARDINAL(CARDINAL ) ) . An appeal lay against a refusal to a special commission of ORG and from there to a court ( section CARDINAL) .

Pursuant to section CARDINAL , “ restrictions [ concerning international travel ] [ were to be ] brought to ORG attention by the management of enterprises , institutions , organisations ... on their enrolment for work or study ... that entailed access to ORG secrets . Before such access [ could be ] authorised , a written employment contract [ had to ] be signed on a voluntary basis ... ”

LAW remained in force until DATE when it was replaced by the NORP Act described below .

Section CARDINAL provides that the right of a NORP citizen to leave GPE may only be restricted on the grounds of , and in accordance with , the procedure set out in LAW . LAW ) provides that the right of a NORP national to leave GPE may be temporarily restricted if he or she has had access to especially important or top secret information classified as a ORG secret and has signed an employment contract providing for a temporary restriction on his or her right to leave GPE . In such cases the restriction is valid until the date set out in the contract , but for no longer than DATE from the date the person last had access to especially important or top secret information . ORG for the protection of ORG secrets can extend this period up to a maximum of DATE .

The granting of access to ORG secrets presupposes the consent of the person concerned to partial and temporary restrictions on his or her rights in accordance with LAW ( section CARDINAL ) .

NORP The rights of persons who have been granted access to State secrets may be restricted . The restrictions may affect their right to travel abroad during the period stipulated in the work contract , their right to disseminate information about the State secrets and their right to respect for their private life ( section CARDINAL ) .

The relevant part of Opinion no . CARDINAL ( DATE ) on GPE ’s request for membership of ORG , adopted by ORG on DATE ( CARDINALth Sitting ) , reads as follows :

“ CARDINAL . ORG notes that the ORG shares fully its understanding and interpretation of commitments entered into ... and intends :

xv . to cease to restrict DATE with immediate effect – international travel of persons aware of ORG secrets , with the exception of those restrictions which are generally accepted in ORG member GPE ... ”

The Explanatory Report on Protocol No . CARDINAL to the Convention ( ETS no . CARDINAL ) indicates that ORG set up by ORG endorsed the changes bringing the text of LAW No . CARDINAL in conformity with that of LAW , cited below ( see , in particular , points CARDINAL and CARDINAL of the Report ) .

The laws of the founding members of ORG have not restricted the right of their nationals to go abroad for private purposes since the inception of the organisation . ORG , which was originally signed on DATE by CARDINAL States and has to date been implemented by DATE , has removed border posts and checks in much of the western part of LOC and abolished any outstanding restrictions on international travel .

Many other ORG , including , in particular , the former NORP countries , repealed restrictions on international travel by persons having knowledge of “ State secrets ” , a common legacy of the ORG regime , during the process of democratic transition ( for example , GPE , GPE , GPE , GPE , GPE and GPE ) . At present certain restrictions on persons who were aware of “ ORG secrets ” but wished to go abroad have endured in only a few GPE that were once part of GPE . Of those , CARDINAL member GPE ( GPE and GPE ) provide for temporary restrictions on permanent emigration – but not on international travel for private purposes – by persons who had access to “ ORG secrets ” , and CARDINAL member ORG ( GPE ) also restricts private international travel by such individuals .

Article CARDINAL of LAW ( “ NORP ” ) , to which GPE is a party , defines the right to freedom of movement in the following terms :

“ CARDINAL . Everyone lawfully within the territory of a ORG shall , within that territory , have the right to liberty of movement and freedom to choose his residence .

Everyone shall be free to leave any country , including his own .

The above - mentioned rights shall not be subject to any restrictions except those which are provided by law , are necessary to protect national security , public order ( ordre public ) , public health or morals or the rights and freedoms of others , and are consistent with the other rights recognized in the present LAW .

General Comment no . CARDINAL : Freedom of movement ( LAW ) , adopted by ORG under LAW of the ORG on DATE ( CCPR / C/CARDINAL/Rev.CARDINAL/Add.CARDINAL ) , reads as follows :

“ CARDINAL . Liberty of movement is an indispensable condition for the free development of a person ...

The permissible limitations which may be imposed on the rights protected under LAW must not nullify the principle of liberty of movement , and are governed by the requirement of necessity provided for in LAW , paragraph CARDINAL , and by the need for consistency with the other rights recognized in the LAW .

Freedom to leave the territory of a ORG may not be made dependent on any specific purpose or on the period of time the individual chooses to stay outside the country . Thus travelling abroad is covered , as well as departure for permanent emigration ...

NORP ... Since international travel usually requires appropriate documents , in particular a passport , the right to leave a country must include the right to obtain the necessary travel documents . The issuing of passports is normally incumbent on the State of nationality of the individual . The refusal by a ORG to issue a passport or prolong its validity for a national residing abroad may deprive this person of the right to leave the country of residence and to travel elsewhere ...

Article CARDINAL , paragraph CARDINAL , provides for exceptional circumstances in which rights under paragraphs CARDINAL and CARDINAL may be restricted ...

Article CARDINAL , paragraph CARDINAL , clearly indicates that it is not sufficient that the restrictions serve the permissible purposes ; they must also be necessary to protect them . Restrictive measures must conform to the principle of proportionality ; they must be appropriate to achieve their protective function ; they must be the least intrusive instrument amongst those which might achieve the desired result ; and they must be proportionate to the interest to be protected .

States have often failed to show that the application of their laws restricting the rights enshrined in LAW , paragraphs CARDINAL and CARDINAL , are in conformity with all requirements referred to in LAW , paragraph CARDINAL . The application of restrictions in any individual case must be based on clear legal grounds and meet the test of necessity and the requirements of proportionality . These conditions would not be met , for example , if an individual were prevented from leaving a country merely on the ground that he or she is the holder of ‘ State secrets’ ... ”


Violation of Art. 8;Just satisfaction reserved

The applicant was born in GPE in DATE and lives at present in GPE and GPE .

The applicant stayed with his parents , who are both citizens of GPE and GPE and lawfully residing in GPE , for DATE after his birth in GPE . He then lived with his grandparents in the former GPE , now GPE and GPE . There he completed primary school , though he spent the DATE with his parents in GPE .

In DATE , at DATE , he came back to live with his parents and his sister in GPE , where he finished secondary school and completed a DATE vocational training as a butcher . During this time , he resided lawfully in GPE and , on CARDINAL DATE , he received an unlimited residence permit ( unbefristeter PERSON ) .

On DATE ORG ( GPE ) convicted the applicant of aggravated robbery and burglary and sentenced him to CARDINAL months’ imprisonment , out of which DATE were suspended with a probationary period of DATE . It found that the applicant , on DATE , together with his co - accused born in DATE , had knocked down the victim with a perfume bottle and had stolen cash in the amount of CARDINAL NORP schillings ( ORG ) . On CARDINAL and DATE they had attempted to steal another victim ’s DATE cash receipt by using a wheel nut tool . Still on DATE , they had broken into that victim ’s car and had taken away his DATE cash receipt and a cheque , totalling almost ATS CARDINAL . When fixing the sentence , the court considered as mitigating circumstances that the applicant had so far no criminal record , that he had admitted the offences and had partly made amends ( Schadensgutmachung ) , and that in CARDINAL instances the offences remained attempts . As aggravating circumstances the court considered the concurrence of CARDINAL different offences , the amount of damage , the injury of the victim and the qualification of the burglary . The judgment became final in the absence of an appeal by the applicant .

On DATE ORG Bundespolizeidirektion Wien ) issued a residence prohibition of unlimited duration against the applicant . It referred to LAW CARDINAL and CARDINAL ( CARDINAL ) of the DATE LAW ( PERSON ) according to which a residence prohibition is to be issued against an alien , if he has been sentenced to CARDINAL months’ imprisonment by final judgment of a domestic court .

The applicant served his prison sentence until DATE . Subsequently he was transferred to a detention centre with a view to his expulsion .

On DATE ORG ) dismissed the applicant ’s appeal . Noting that the applicant had lived for DATE after his birth in GPE and that , after his return from former GPE in DATE , he had continuously lived with his family in GPE for DATE , it found that the residence prohibition at issue constituted an interference with his right to private and family life . However , it was necessary to achieve the aims set out in LAW , namely the prevention of disorder and crime and the protection of the rights of others . In particular , the applicant had committed aggravated robbery by using a weapon . Given the seriousness of the offences and the implied disrespect for physical safety and the property of others , no positive prognosis was possible . Therefore , the interest in issuing a residence prohibition of unlimited duration against the applicant prevailed over the applicant ’s interest in staying in GPE .

On DATE the applicant lodged a complaint with ORG ) . He argued that the lower authorities had incorrectly established the facts and had failed to give sufficient reasons for their decisions . He stressed in particular that his family had already been residing lawfully in GPE for DATE and that he had completed secondary school and vocational training , upon which he had legally worked as a butcher . Before his conviction by ORG , the applicant had had no criminal record and the offences had been committed within a very short period of DATE . Since his grandparents had died in the meantime , he had no other relatives in GPE . The centre of his private and family life was exclusively in GPE . Referring to the NORP and NORP judgments of ORG , the applicant argued that the authorities had failed to comply with the Convention standards . In particular they had failed to balance correctly his interests in respect for his private and family life against public interests . There was no pressing need to issue an unlimited residence prohibition against him .

On DATE ORG declined to deal with the matter and remitted the complaint to ORG ( Verwaltungsgerichtshof ) .

On DATE ORG dismissed the complaint . It found that ORG had duly considered the applicant ’s private and family situation and had correctly assessed the interests involved when issuing the residence prohibition . Furthermore ORG found that in the cases of GPE and NORP the persons concerned had had stronger family ties in the host country than the applicant . The decision was served on the applicant ’s counsel on DATE .

On DATE the applicant was expelled to the former GPE , now GPE and GPE .

On DATE the applicant requested ORG to revoke the residence prohibition issued against him in view of LAW § CARDINAL ( CARDINAL ) of the DATE LAW , which was to enter into force on DATE . Pursuant to that provision , a residence prohibition may not be issued “ where a foreigner has grown up in GPE from an early age on and has been lawfully residing there for many years ” . Section CARDINAL § DATE Aliens Act establishes that if a residence prohibition has not expired at the date of the entry into force of the DATE LAW , the residence prohibition has to be regarded as a residence prohibition issued under LAW . However , the residence prohibition has to be revoked if it was not lawful to issue it under the CARDINAL Aliens Act .

On DATE ORG dismissed this request . It noted in particular that the applicant did not comply with the requirements of the above provision , since he had not grown up in GPE within the meaning of LAW § CARDINAL ( CARDINAL ) . Therefore , the imposition of the residence prohibition was also lawful under LAW .

In his appeal of CARDINAL DATE the applicant complained that ORG had incorrectly applied the provision at issue .

On DATE ORG dismissed his appeal . It noted that the provision at issue required that a foreigner had commenced growing up in GPE at DATE or even younger , whereas the applicant had only been in GPE during DATE of his life and had come back when he was already CARDINAL . Therefore , he clearly did not comply with that provision .

NORP The applicant did not appeal to ORG and ORG .


Preliminary objection joined to merits (victim);Preliminary objection rejected (victim);Preliminary objection rejected (non-exhaustion of domestic remedies);Preliminary objection rejected (ratione materiae);No violation of Art. 6-1

Mr PERSON has dual NORP and NORP nationality . He was honorary consul of the GPE in GPE from DATE to DATE and also looked after that country ’s consulate in GPE .

ORG On DATE and DATE customs officers seized CARDINAL documents at the applicant ’s GPE residence , on premises housing the head offices of companies he managed and the consulate of GPE . This operation was part of an investigation to determine , among other things , whether the applicant and his mother were to be regarded as being resident in GPE .

The judicial investigation that had been commenced on a complaint lodged by the director of customs investigations alleging unlawful accumulation and holding of assets abroad ended in a judgment of ORG of DATE in which the court ruled that the public prosecution and the proceedings for imposition of customs penalties in respect of PERSON and PERSON were barred as a result of changes in the criminal law and ordered the return of the seized documents . These were returned in DATE .

Mr PERSON challenged before the GPE institutions the lawfulness of the customs seizures made pursuant to ORG CARDINAL and CARDINAL of the Customs Code . Those proceedings led to CARDINAL judgments of ORG . In the first of these it was held that there had been a breach of LAW ( article CARDINAL) , on the ground that the house searches and seizures made by customs officers without a judicial warrant had interfered with the private life of the applicant , his mother and his wife ; and in the second , GPE was ordered to pay Mr Miailhe CARDINAL,CARDINAL French francs ( ORG ) in respect of non - pecuniary damage and ORG CARDINAL,CARDINAL for costs and expenses ( see the GPE v. GPE ( no . CARDINAL ) judgments of DATE , Series A no . CARDINAL-C , and DATE , Series A no . CARDINAL-C ) .

ORG On DATE ORG sent the applicant notice of a full audit of his overall tax position in respect of his income for DATE .

Since PERSON regarded himself as being resident for tax purposes in the GPE , and accordingly not under an obligation to pay tax to ORG , the Revenue asked him to produce copies of his tax assessment notices in the GPE and documents giving details of all bank accounts in his name both in GPE and abroad .

On DATE Mr PERSON replied that it was impossible for him to forward some of the documents that had been kept by the customs and which he had asked to have returned to him .

ORG During DATE the tax inspector exercised the right of inspection provided in ORG et seq . of LAW and LAW .

At the offices of his customs colleagues he examined the CARDINAL documents that had been kept and classified by the customs authorities and made copies of CARDINAL of them .

ORG On DATE the tax inspector asked the NORP authorities for administrative assistance as provided for in LAW of DATE " for the avoidance of double taxation and prevention of fiscal evasion in relation to income tax " ( see paragraph CARDINAL below ) .

On DATE he inspected CARDINAL sheets concerning returns and annexes of the applicant and his mother for DATE , CARDINAL sheets concerning returns , appended financial statements and certificates from the accountant of the ORG company managed by the applicant in respect of DATE , and CARDINAL sheets relating to a provisional accounting statement and a bank reconciliation as at DATE .

These documents reached the Revenue ’s administrative headquarters in GPE on DATE .

ORG At the end of the tax audit CARDINAL supplementary assessments were served on PERSON : on DATE for DATE , on DATE for DATE , on DATE for DATE and on DATE for DATE . The Revenue subsequently amended the notices in respect of DATE , once on DATE , in the light of comments by the applicant , and again on DATE , to correct erroneous reasons .

ORG The relevant documents to be studied for each category of proceedings - administrative , tax and criminal - were not all the same , since different tax years and bases of assessment were involved , as were failures to make returns and real - property and agricultural taxes distinct from the general income tax to which the dispute over tax residence related more particularly .

Mr PERSON challenged the supplementary tax assessments for DATE in the administrative courts , which have jurisdiction in tax matters , by lodging an appeal founded partly on the non - adversarial nature of the Revenue ’s preparation of the case against him .

In a judgment of CARDINAL DATE ORG held that the applicant had not proved that he had expressly asked the Revenue to produce the documents on which it had allegedly based the assessments for DATE , DATE and DATE and ordered further inquiries on this point . As to the assessment raised for DATE , on the other hand , the court found that the Revenue had failed to accede to an application for production made by the applicant ’s lawyer and accordingly remitted the additional tax sought from the applicant in the category of income from movable assets and in respect of income from undetermined sources for DATE . An appeal by the Minister for the ORG regarding the remission of tax granted for DATE was dismissed by ORG .

An appeal on points of law against ORG judgment is pending before the PERSON d’Etat . ORG has not yet ruled on the merits as regards the supplementary tax assessments for DATE , DATE and DATE .

ORG In other proceedings brought against the Revenue by the ORG company , managed by the applicant , ORG found that the tax assessment challenged by the company was based in part on documents seized by the customs in circumstances that had been held to be contrary to LAW ( article CARDINAL) . In a judgment of DATE it allowed the company ’s application for remission of tax as follows :

" While the unlawfulness of the seizure , in proceedings brought under different legislation , of documents on the basis of which the Revenue , exercising its right of inspection , assessed the taxes has no effect on the lawfulness of the tax proceedings , it is such as to deprive those documents of any probative value , including inasmuch as they revealed to the Revenue that the taxpayer was in a position to have his tax assessed by the Revenue of its own motion . Where an international judicial body set up by an international treaty or agreement that has been lawfully ratified or approved has ruled that the seizure of documents did not comply with the said treaty or agreement , the court having jurisdiction in tax matters must regard the seized documents as having no probative value ... "

ORG On DATE ORG ( " the ORG " ) gave approval for a complaint to be lodged seeking the imposition of criminal tax penalties , pursuant to LAW see paragraph CARDINAL below ) .

In consequence , ORG lodged a complaint , together with an application to join the proceedings as a civil party , against the applicant for tax evasion in respect of DATE and DATE . It accused him of not having made any general tax return for DATE and of having understated his agricultural income for DATE .

ORG The Revenue annexed to its complaint some of the documents given to it by the customs authorities . It did not at that juncture append any of the documents forwarded by the NORP authorities , although the tax inspector ’s summary report that had been placed in the file of the judicial investigation mentioned the correspondence between the NORP and the NORP authorities .

The investigating judge raised this point with the tax inspector , who referred back to his central authorities and subsequently told the judge that his authorities had hesitated to produce in criminal proceedings documents which the ordinary judicial authorities could not have procured for themselves . At the judge ’s request , the inspector added to the file the documents from the GPE provided by his authorities , that is to say the only documents concerning PERSON in respect of the offences charged . The documents not placed in the file related either to PERSON and the ORG company - and neither of these was implicated - or , in respect of the defendant , to the DATE and DATE , which the proceedings for failure to make a tax return were not concerned with .

ORG On DATE the investigating judge committed the applicant for trial at ORG on a charge of having fraudulently evaded , in part , assessment and payment of income tax for DATE and DATE " by having failed to make certain category - specific returns ( in respect of income from movable assets , ‘ ORG , and industrial and commercial profits , ‘ BIC’ , LAW ) within the prescribed time - limits ( in respect of DATE ) and by having omitted from his returns ( for DATE and DATE ) part of his income from farming and real property , thus deliberately concealing in his overall returns part of the sums liable to tax " .

ORG Before any defence on the merits Mr PERSON filed submissions in which he sought to have the Revenue ’s complaint and the judicial investigation proceedings declared null and void . He argued that the customs seizures were null and void , that the adversarial principle had not been respected by the Revenue and that the latter , in particular during the judicial investigation , had withheld documents from the judicial authorities and made false statements .

He himself filed certain documents that he had been able to obtain from the NORP authorities : the NORP tax authorities’ request to their NORP opposite numbers , the NORP authorities’ reply indicating that PERSON and PERSON had been resident for tax purposes in the GPE for DATE and DATE , information concerning the ORG company , untranslated bank documents , a certificate by a registered accountant to the effect that PERSON tax return for DATE had been made in good faith , a statement of his income and expenditure for DATE , an amortisation table for DATE , a statement of his income for DATE , the tax return he made in the GPE for DATE and a tax return for DATE .

ORG On DATE ORG gave its judgment .

It began by dismissing all Mr PERSON ’s preliminary objections .

As regards the first of those , it pointed out that on an appeal by the applicant concerning the lawfulness of the seizures , ORG had upheld a judgment of ORG in which that court had said that " the customs officials did not exceed their powers and that there was no manifest , deliberate violation of a personal freedom " ; the customs seizures were covered by paragraph CARDINAL of Article CARDINAL of the Convention ( article CARDINAL - CARDINAL ) and the seized documents had been lawfully made available to the Revenue .

It dealt with the second objection as follows :

" ... on account of the principle that tax and criminal proceedings are independent , the [ criminal ] courts can not rule on the nullity of tax proceedings . The only exception to this principle is provided in LAW This Article provides that proceedings shall be null and void where a notice of audit does not mention that the taxpayer has the right to be assisted by an adviser of his own choosing . As the defendant does not dispute that this information was given to him , he can not rely on any other argument in order to obtain from the criminal courts a declaration that the tax proceedings are null and void . "

As to the last objection , the court found , in the light of the documents produced by the applicant at the hearing , that the letters and documents exchanged by the NORP and NORP authorities were not in the file and it held :

" ... The failure to place in the file some documents of importance to the accused ’s defence , which had been sought in their entirety by the investigating judge , amounts to a breach of his rights .

That breach of the rights of the defence can not , however , have the consequence that the earlier proceedings were a nullity .

By producing these documents at the hearing , the accused was able to explain their content and have them submitted to adversarial argument . The breach of his rights did not therefore have the effect of prejudicing his interests . "

ORG Ruling on the question whether PERSON was under an obligation to make a return in GPE of his category - specific income and whether he had with fraudulent intent evaded paying that tax for DATE , the court held that the applicant was resident for tax purposes in GPE at the time , both under NORP law and under ORG . In order to determine whether there had been fraudulent intent , it relied among other things on a manuscript document written by PERSON that was reproduced in the tax - audit report and on the applicant ’s conduct in producing only at the hearing his full return for DATE , which had been submitted to the tax inspector with the figures whited out .

As to the undeclared income from farming and real property for DATE and DATE , the court found that the applicant had lent money to himself through the bank accounts of his companies and subsequently deducted from his agricultural income the interest charges and exchange losses . He thus realised a tax loss for DATE and legally exported his capital by means of the repayments .

The court concluded that PERSON had personally put in place fraudulent arrangements designed to evade liability to and payment of tax in GPE . It sentenced him to CARDINAL GPE imprisonment , of which DATE were to be served immediately , and a fine of FRF CARDINAL . Extracts from the judgment were ordered to be published in the NORP ORG and in the DATE newspapers ORG , ORG and ORG .

ORG The defendant appealed and in ORG reiterated the CARDINAL objections of nullity already raised , stating as to the last of them that :

" ... although he ha[d ] been able to obtain a number of withheld documents by seeking them from the NORP authorities , he ha[d ] been unable to inspect most of the documents attached to the correspondence , he still [ did ] not know what they contained and ha[d ] been unable to give explanations concerning them ; in particular , he ha[d ] not been able to refer to the withheld documents before ORG ; ... "

ORG gave judgment on DATE .

It joined the objections to the merits and dismissed them , referring " in the case of the first CARDINAL applications for a declaration of nullity that were reiterated but not strongly argued " to the reasoning of ORG . The last objection , concerning the withholding of documents and the false statements , it dismissed as follows :

" These documents should have been handed over but provide no information that could have any bearing on the decision of the court below or of this court : for the most part they did not concern PERSON or the period in question , DATE ; ... the documents not filed were of no relevance to the case and , at all events , were produced at the hearing in the court below and examined adversarially on that occasion ; the same reasoning , except for the adversarial examination of the documents , applies to ORG ; moreover , at first instance no application was made for a declaration that the proceedings before ORG were null and void .

As regards the very large number of other documents handed over but not placed in the file , their existence , alleged by [ the applicant ] , has not been proved and they can not be taken into account in any way . "

ORG On the merits the court held , as to the first offence of failure to declare income for DATE , that the applicant was a NORP resident for tax purposes under NORP law alone , as ORG did not operate in the instant case since there was no conflict between the CARDINAL sets of national legislation . The court pointed out that the Revenue ’s calculations had been based on documents signed in GPE by PERSON , which it listed . The court held that he had had fraudulent intent from a scrutiny of notes by him that had been seized and were in the file and documents that he had placed in it himself , which showed that notwithstanding his alleged status as NORP resident and citizen , he had not discharged his obligation to declare his world income in the GPE either .

ORG , which upheld ORG judgment in its entirety , sentenced the defendant to CARDINAL GPE imprisonment , of which DATE were to be served immediately , and a fine of FRF CARDINAL .

Mr PERSON lodged an appeal on points of law , which was dismissed by ORG ) on DATE .

The judgment read as follows :

" As to the second ground of appeal , based on the breach of LAW article CARDINAL) of LAW ...

The ground must therefore fail ;

As to the third ground of appeal , based on a breach of ... LAW ...

Firstly , the accused merely raised , in the court of trial before any defence on the merits , an objection of nullity going to the lawfulness of the supplementary tax assessment proceedings , which , as they are purely administrative , are irrelevant to the criminal proceedings .

That being so , the first limb of the ground of appeal , which raises for the first time before ORG the objection based on the alleged nullity of the proceedings before ORG gave its opinion , is inadmissible LAW .

Secondly , as a ground for refusing to allow the objection that the ordinary criminal proceedings were a nullity on account of the Revenue ’s withholding of documents useful to the defence , ORG noted that under ORG of DATE , the NORP authorities sought administrative assistance from the NORP authorities . The accused maintained that CARDINAL documents were sent to the NORP authorities in this way .

The accused , who had been able to obtain some of these documents , produced them at the hearing in ORG .

After studying these documents , ORG found that they were of no relevance to the case , most of them not concerning [ PERSON or the period referred to in the charge . At all events , they were produced at the hearing in ORG and examined adversarially on that occasion . ORG added that the existence of the other documents allegedly sent and not placed in the file had not been proved .

In ruling as it did , ORG , which based its judgment only on the documents produced at the hearing , provided a legal basis for its decision .

The second limb of the ground of appeal must likewise fail . "

ORG The applicant was committed to prison on DATE and was released on licence on DATE of DATE . He was placed under judicial supervision until DATE .

ORG At GPE on DATE the NORP and ORG signed a convention " for the avoidance of double taxation and prevention of fiscal evasion in relation to income tax " . LAW " ) provides :

" CARDINAL . The competent authorities of the Contracting States shall exchange such information ( being information which is at their disposal under their respective tax administrative practices and those which may be procured by special inquiry ) as is necessary for the carrying out of this Convention and of the domestic laws of GPE concerning taxes covered by this LAW , in particular , for the prevention of fraud or evasion of such taxes . Any information so exchanged shall be treated as secret and shall not be disclosed to any persons or authorities other than those ( including a court or administrative body ) concerned with the assessment , collection , or enforcement in respect of taxes which are the subject of the LAW or with the prosecution , claims and appeals relating thereto .

In no case shall the provisions of paragraph CARDINAL be construed so as to impose on CARDINAL of GPE the obligation :

( a ) to carry out administrative measures at variance with the laws or the administrative practices of that or of the other ORG ;

( b ) to supply particulars which are not obtainable under the laws or in the normal course of the administration of that or of the other ORG ;

( c ) ... "

ORG Administrative tax - inspection proceedings are governed by LAW . By LAW ,

" A full audit of the overall tax position of a natural person in regard to income tax or an audit of accounts can not be undertaken unless the taxpayer has been informed of it by the sending or handing over of a notice of audit .

Such a notice must specify the DATE in respect of which the audit is to be made and expressly mention , failing which the proceedings will be null and void , that the taxpayer has the right to be assisted by an adviser of his own choosing .

In the event of an unannounced inspection for the purpose of identifying physical features of the business or establishing the existence and state of the books , the notice of an audit of the accounts shall be handed over at the beginning of the search operation . A thorough scrutiny of the books may only begin after the taxpayer has been given a reasonable time to seek the assistance of an adviser . "

The courts with jurisdiction in tax matters , which in the case of direct taxes are the administrative courts , are competent in principle to deal with irregularities in administrative tax - inspection proceedings . They ensure that the safeguards afforded to taxpayers are complied with . Thus " a final decision by a criminal court can not prevent a taxpayer from arguing before a court with jurisdiction in tax matters that the audit which gave rise to the impugned tax assessments was irregular " ( ORG d’Etat , CARDINAL DATE , no . DATE , Revue de jurisprudence fiscale , DATE , no . CARDINAL ) .

ORG Article L.CARDINAL of LAW provides :

" To be admissible , complaints seeking the imposition of criminal penalties in respect of direct taxes , value - added tax and other turnover taxes , registration fees , land registry fees and stamp duty must be lodged by the administrative authorities after approval from ORG .

The ORG shall consider the cases submitted to it by ORG . The taxpayer shall be given notice of the application to ORG , which shall invite him to send it , within DATE , any information it considers necessary .

The Minister shall be bound by the ORG ’s opinions . "

The Revenue is not required by any provision of statute or of regulations to institute criminal proceedings in respect of the offences referred to in LAW ( ORG d’Etat , CARDINAL DATE , ORG DATE , p. CARDINAL ) .

The ORG was set up under LAW of DATE in order to afford taxpayers fresh safeguards and it is made up of CARDINAL senior members of the ORG d’Etat ( judges of the administrative courts ) and CARDINAL senior members of ORG ( judges of the financial courts ) . ORG absolutely excluded the possibility of the ORG being a court of first instance . It refused to allow the ORG ’s opinions to contain reasons , in order to avoid influencing the ordinary courts . As long as there is no breach of due process , a taxpayer accused of tax evasion may not challenge in the criminal courts the lawfulness of the administrative proceedings which took place prior to the ORG ’s favourable opinion ; the criminal court must only establish the existence and date of that opinion ( Court of Cassation , ORG , DATE , PERSON ( " DS " ) DATE , p. CARDINAL ) .

The only function of the criminal courts that hear tax - evasion cases is to punish the offence . ORG has held :

" ... Criminal proceedings instituted under LAW and the administrative proceedings for establishing the tax base and the scope of tax are in their nature and purpose different and independent from each other ... the function of courts which try criminal cases under LAW limited to determining whether the defendant evaded or attempted to evade tax by reprehensible subterfuges in respect of sums exceeding the statutory allowance . "

ORG , DATE , ORG , p. CARDINAL )

Article PERSON provides that any breach of its provisions shall entail a nullity of the proceedings " without any distinction being made between administrative proceedings and criminal proceedings ... Since the latter proceedings may be based on findings made by the inspectors in the books and documents held by a taxpayer , compliance with the requirements of [ LAW L.CARDINAL ] is an essential safeguard of the rights of the defence , which it is for the criminal courts to ensure are respected " ( Court of Cassation , Criminal Division , DATE , ORG , ORG DATE , p. CARDINAL ) . However , " it is not within the jurisdiction of the criminal courts to assess the lawfulness of the tax proceedings ... The criminal courts’ response to failure to comply with the provisions of LAW in that it departs from the general principle of the separation of administrative and ordinary courts , must be based on a strict construction and accordingly can not be extended beyond the cases to which the statute expressly meant to limit it " ( Court of Cassation , Criminal Division , CARDINAL DATE , ORG , p. CARDINAL ) .


CASE OF NOVOSELETSKIY v. UKRAINE [Extracts]

Violation of Art. 8;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in GPE ( GPE ) .

By a decision of DATE under LAW , the trade union branch at the Melitopol State Teacher ORG ( “ the Institute ” ) , which was the applicant 's employer at the time , granted the applicant indefinite authorisation ( ордер ) to occupy and use a CARDINAL - room , QUANTITY . m flat in a building in PERSON on the ORG 's books .

In DATE the applicant resigned from the ORG and went to live in PERSON ( GPE ) to prepare his doctoral thesis . Before leaving , he took his wife to GPE ( GPE ) , where she was due to receive medical treatment .

On DATE the ORG annulled its decision of DATE and granted authorisation to occupy and use the flat to ORG , another of its employees .

On DATE T. , accompanied by CARDINAL witnesses , entered the flat . They noted that the flat was empty and made a statement to that effect . According to the applicant , his possessions were removed or stolen from the flat .

NORP In DATE the applicant 's wife returned to PERSON . Unable to move back into the flat , which was now occupied by ORG 's family , she had to return to GPE and move in with relatives . In DATE the applicant returned to PERSON , before joining his wife in GPE .

In DATE the applicant filed a civil claim against ORG with ORG , claiming compensation for pecuniary and non - pecuniary damage and seeking to assert his right to free use of the flat in question . ORG in turn lodged an application to have that right withdrawn from the applicant .

On DATE , following an intervention by the procurator at the applicant 's request , the ORG annulled its decision of DATE , finding that it had been unlawful , and restored the applicant 's rights to the flat .

In a judgment of DATE , ORG dismissed the applicant 's claim and granted the ORG 's application . It found in particular that , in accordance with the legislation in force and the employment contract concluded between the ORG and the applicant , the latter had forfeited his right to use of the flat concerned after taking up permanent residence elsewhere . The court also noted that , according to the statement made on DATE , the flat in question had been empty when it was entered .

Following an objection under the supervisory review procedure from the PERSON deputy regional procurator , ORG , in a judgment of DATE , quashed the judgment of DATE and remitted the case to ORG for further consideration .

By a judgment of DATE , ORG rejected the applicant 's claim , reiterating in substance the findings of the judgment of DATE .

Following an appeal by the applicant on points of law ORG , in a judgment of CARDINAL DATE , quashed the judgment of DATE and remitted the case once more to the court of first instance . In particular , ORG noted that the issue of the lawfulness of the ORG 's decision of CARDINAL DATE , granting T. the rights to the flat in question , had not been addressed , despite the fact that the decision had subsequently been annulled following an objection from the procurator . The court further noted that the applicant 's wife , who was also authorised to occupy the flat , had been absent from the flat only temporarily , and on medical grounds . The court noted , inter alia , that CARDINAL of the CARDINAL witnesses had signed the statement of CARDINAL DATE at ORG 's request and had not been present when he had entered the flat .

By an order of DATE giving effect to the ORG 's decision , the executive committee of PERSON municipal council transferred ownership of the flat in question to ORG , a private individual .

In a judgment of DATE , ORG allowed the applicant 's claim in part . That judgment was upheld by ORG in a judgment of DATE . The court noted in particular that the applicant 's move to PERSON had been only temporary , and that PERSON had remained his permanent place of residence . Accordingly , it found that the applicant had the right to free use of the flat in question in PERSON . However , the court rejected the applicant 's claim for damages , observing that the criminal investigation into the disappearance of his possessions had been closed by an order of DATE ( see paragraph CARDINAL below ) . In that connection , the court took the view that neither the amount of the claim nor the existence of the pecuniary damage allegedly caused by ORG had been borne out by the evidence provided . It also noted that the law made no provision for compensation in respect of non - pecuniary damage in landlord - tenant disputes .

On DATE ORG forwarded the writ of execution in respect of the judgment of DATE to the NORP department of ORG .

On DATE the court bailiff noted that the flat in question was occupied by T. 's family . Accordingly , he lodged a request with ORG for an interpretation of the judgment of DATE .

In a decision of DATE , ORG dismissed the request on the ground that it was aimed at having the judgment in question varied rather than interpreted . Furthermore , it noted :

“ In examining the aforementioned civil case , the court was not aware that ownership of the flat in question ... had been transferred to a private individual , as ORG had not informed the court of this fact when he gave evidence as a witness at the hearing . Only after the judgment had been delivered did this come to light . That being the case , neither the court nor the applicant PERSON was aware that the flat had passed into private ownership . It was for that reason that Mr PERSON lodged an application simply to be allowed to occupy the flat in question rather than to have [ T. ] evicted . ”

ORG upheld that decision in a judgment of DATE .

In DATE the PERSON procurator applied to ORG on the applicant 's behalf , seeking to have the transfer of ownership of the flat to T. on DATE declared unlawful , and to have ORG evicted from the flat .

At the hearing , the executive committee of Melitopol municipal council argued that the construction of the flats belonging to the ORG had been funded by ORG , and that any decision concerning the flat in issue would have been taken entirely by the ORG management .

In a judgment of CARDINAL DATE , ORG granted the procurator 's application , ordering ORG to vacate the flat and the ORG to provide ORG 's family with alternative accommodation . In addition , the court concluded that ORG had acted unlawfully in relation to the disputed flat , in particular in approving the transfer of ownership to ORG , a private individual , in DATE , while the applicant 's civil claim was still pending before the court . This judgment became final on DATE .

In a decision of DATE , ORG granted ORG and his family a stay of execution of the judgment of CARDINAL DATE until DATE , owing to the chronic illness of CARDINAL of the family members . The applicant alleges that he was not informed of the court hearing on that issue .

In DATE and DATE , the court bailiff imposed a fine on the director of ORG delays in complying with the judgment in question .

By orders of CARDINAL DATE and DATE , the court bailiff discontinued the execution proceedings in respect of the judgments of ORG of DATE and CARDINAL DATE , after certifying that the flat in question was unfit for human habitation . On DATE , in a measure designed to secure possession of the flat by the applicant , a committee made up of the applicant and CARDINAL witnesses , in the presence of the court bailiff , certified that the flat in question was empty and unfit for human habitation and needed substantial repairs before it could be used . Among many other things , the committee noted that the sanitary fittings and electrical wiring had been seriously damaged , that the sink and surrounding pipes had been removed , making it impossible to use any running water , and that the contents of the sewage pipes emptied into the flat , creating a powerful stench . They also recorded the refusal of T. and an official of the ORG to hand over the keys to the flat to the court bailiff .

On DATE CARDINAL witnesses , of whom CARDINAL were engineers , accompanied by the applicant , inspected the flat and noted that , as a result of the damage recorded on DATE , the sewage pipes emptied into the kitchen and toilets , as had been the case at their inspections in DATE and DATE , and that the applicant was unable to use the sanitary facilities or running water . A statement to that effect was drawn up for the attention of ORG .

According to a statement of CARDINAL DATE addressed to ORG and the procurator 's office by the applicant and CARDINAL engineers who had acted as witnesses , the sewage pipes were blocked and the water pipes and sanitary fittings were out of order . The statement referred to similar findings that had been made by ORG . The signatories contended that the situation had not changed since DATE , when the applicant had taken possession of the flat .

In his letter of DATE to the ORG , the applicant complained that since DATE he had been unable to live in the flat owing to its deplorable state ; however , he had visited the flat regularly in order to monitor the situation .

On DATE the applicant lodged a complaint with the PERSON department of ORG , alleging that his belongings had been removed from the flat . He requested that criminal proceedings be brought against the management of ORG and against T. for unlawful entry into his flat . In support of his complaint , the applicant submitted CARDINAL statements , CARDINAL from his sister , G.G.S. , and the other from his niece , ORG , to the effect that they had seen in the flat in question several pieces of furniture , a large number of books , a television , a radio , household appliances , CARDINAL mammoth tusks and gold and silver jewellery , together with MONEY hidden in the stove and in the basement . The applicant also submitted a statement from ORG , a police officer , confirming that he had assisted the applicant in DATE in moving his personal effects from the hall of residence where he had lived previously to the flat in question .

According to the ORG , the investigating authorities had responded to this complaint by conducting a detailed investigation into the alleged theft . The investigation established that , after being informed of the applicant 's resignation and his departure for GPE , the director of ORG had instructed ORG to enter the flat and check that the heating was in order for DATE . In an order dated DATE , the NORP department of ORG closed the criminal proceedings , finding that no offence had been committed ( за відсутністю події злочину ) . The order made reference to the statement of CARDINAL DATE , drawn up by ORG and signed by CARDINAL witnesses , to the effect that the flat had been empty when it was opened up .

DATE , the applicant lodged several complaints with the PERSON procurator 's office and the PERSON regional procurator 's office seeking to have the order of CARDINAL DATE quashed .

In a letter of DATE , the PERSON regional procurator 's office informed the applicant that the PERSON procurator 's office had issued an order on DATE quashing the order of CARDINAL DATE , and had reopened the criminal proceedings in response to his complaints concerning the disappearance of his possessions from the flat .

By a letter of CARDINAL DATE , the PERSON regional procurator 's office informed the applicant that the investigation set up in response to his complaints had still not been completed .

On DATE the Zaporijya regional procurator 's office wrote to the applicant informing him that , by an order of CARDINAL DATE , the PERSON department of ORG had closed the criminal proceedings relating to the disappearance of his possessions on the ground that no offence had been committed , but that the proceedings to establish the lawfulness of that order were still in progress .

In CARDINAL letters dated DATE and DATE , the PERSON procurator 's office informed the applicant that the criminal proceedings relating to the disappearance of his possessions were still pending .

On DATE the Zaporijya regional procurator 's office examined the file relating to the investigation , quashed all the earlier decisions and ordered further investigations to be carried out .

By a decision of CARDINAL DATE , the PERSON department of ORG closed the criminal proceedings , finding that no offence had been committed . On DATE the PERSON deputy procurator quashed that decision and reopened the investigation .

In an order of CARDINAL DATE , the PERSON department of ORG , after summarising the main findings of the investigation , closed the criminal proceedings on the ground that no offence had been committed .

NORP In particular , it was observed that G.G.S. and GPE , on whose statements the applicant had relied , had declined to attend in person in order to provide further information to the investigating officer . In that connection it was also pointed out that ORG had refused to take ORG 's statement into account because she was related to the applicant .

T.G.M. was questioned several times on the subject of his statement , on DATE , DATE and CARDINAL DATE . In his submissions , ORG said that he had moved the following items into the flat in question : a washing machine , a refrigerator , some chairs , a guitar , some spare parts for cars and some home - made jams . However , the investigation noted that these items had not been mentioned by the applicant in his complaints . ORG also maintained that he had seen a piece of mammoth tusk in the applicant 's room in the hall of residence where he had lived previously .

It was established that , prior to his move into the disputed flat , the applicant had rented fully furnished accommodation with a surface area of QUANTITY m in a hall of residence . However , neither T.G.M. , during an attempted reconstruction , nor the applicant , was able to say precisely where so many bulky items of furniture , of the kind described in the applicant 's complaints , might have been fitted into a furnished dwelling with a surface area of QUANTITY m.

In addition , statements were taken in the course of the investigation from CARDINAL persons , including ORG , who lived in the same building or adjoining buildings . They all asserted that they had seen no heavy or bulky items of furniture being moved into the flat in question DATE . Taking the view that items of that nature could not have been moved in without being noticed , and on the basis of the preceding statements , the investigating officer concluded that the applicant had never moved the items into the flat , and that the alleged theft had not taken place .

Furthermore , the order of CARDINAL DATE accused the applicant of taking insufficient interest in the investigation , having failed to attend his appointments with the investigating officer .

Lastly , having observed some inconsistencies in the applicant 's statements concerning the date of his return to PERSON , the investigation concluded that the applicant had lodged his complaint concerning the alleged theft on fictitious grounds and with a view to material gain . In support of this argument , the order cited some criticisms made of the applicant by previous employers .

DATE of LAW ( ORG кодекс DATE the Code ” ) of CARDINAL DATE ( as amended ) stipulates that the ORG 's housing stock comprises ORG - owned houses and dwellings in other buildings .

Section CARDINAL of Law no . CARDINAL of DATE on the privatisation of the ORG housing stock ( ORG “ Про приватизацію державного житлового фонду ” ) defines the ORG housing stock as the housing stock of the municipal councils , together with the housing managed by ORG - owned companies , institutions and establishments ( “ the institutional housing stock ” ) .

Under LAW , the housing stock is managed by the owner or by an establishment , to the extent that powers have been delegated to it by the owner .

Under the terms of the second paragraph of LAW , work carried out on buildings that form part of the institutional housing stock ( відомчий житловий фонд ) is funded by the budget of the companies , institutions and establishments concerned .

Article CARDINAL of the Code governs the allocation of flats from the institutional housing stock . In particular , flats are allocated by a joint decision of the authorities and the trade union branches of the companies , institutions and establishments concerned , which either submit their decision to the relevant municipal council for approval or , in some cases , simply inform the council . On the basis of that decision , the executive committee of the municipal council issues the person concerned with an authorisation to occupy the flat ( ордер ) , which constitutes the sole legal basis for taking possession of the allocated dwelling ( see Article CARDINAL of the Code ) .

DATE of the LAW provides that the housing stock is subject to ORG supervision . This consists in ensuring that all the organisations and persons concerned observe the rules on the use and maintenance of the housing stock and that the distribution of living space and allocation of flats occur in the correct order .

NORP The list of functions of the executive committees of the municipal councils set out in LAW includes ORG supervision of the use and maintenance of the housing stock , monitoring of the state of repair and use of the institutional housing stock , and monitoring of the waiting list of persons in need of better housing kept by the companies , institutions and establishments concerned .